Johnson & Co. v. Smith

Opinion by Mb. Justice Green, The lease under which the plaintiffs claim to recover the rent in controversy bears date January 25, 1866, and was made by J. A. Dewar and Z. O. Smith to a firm called Dewoody, Smith & Co. David S. Smith was a member of that firm, and [198] the executors of his will are 'the- defendants in the present suit. David S. Smith, or the different firms of which he was a member, continued to pay rental at the rate of one hundred dollars annually for the use of the water power in question, up until 1886, the last payment being made June 3, 1886. In that year the factory using the water power burned down and was not rebuilt, and this action was brought to recover rent for the remainder of the term of twenty-five years commencing October 15, 1865, and ending October 15,1890. The lease was recorded in June, 1868. From this brief statement of the leading facts of the case it would seem that there could be no question as to the liability of D. S. Smith and his estate for the rent claimed. But on the trial the defendants offered to prove by David G. Dewoody, a member of the firm of Dewoody, Smith & Co., who were the lessees named in the written lease, that the water power was operated by Dewoody, Smith & Co., up until the fall of 1868, under an agreement which Mr. Dewar had formerly made with D. T. Lane, as testified to by him, and “that the'alleged lease on which this suit is brought was never accepted or entered into by the firm of Dewoody, Smith & Co., or rent paid by them thereunder.” D. T. Lane had already testified that he had put in the machine shop plant (the Petroleum Machine Works using the water) in 1864, and that he made a verbal contract at the time with Mr. Dewar, the owner of the mill property above the machine shop, from which the water power was derived, for the use of the wafer power at $100 a year for twenty years. He had also testified that he sold out to Dewar in March, 1865. It is alleged by the appellants in their history of the case that the firm of Dewoody, Smith & Co. was organized in October, 1865, and Dewoody testified that he continued in the firm until 1868, when he left it. Now the written le.ase in question was made in January, 1866, to the firm Dewoody, Smith & Co., and prima facie, the inference would be that they and those who succeeded them, held under the lease. But the offer of proof was that the water power was operated, not under the written lease but under the verbal agreement made by Dewar with Lane. The learned court below rejected the offer saying that it did not lie in the mouth of Dewoody to say that the lease was not valid after paying rent upon it, and thereupon counsel for the appel [199] lants said that they never paid rent from the beginning. While it certainly does seem strange that D. S. Smith did not claim under this written lease, an offer to prove the contrary, and that he really claimed under a different contract altogether, cannot be rejected. For, supposing the offer to have been admitted, and thereupon proof given in accordance with the offer, a question of disputed fact would arise which could only be determined by the jury, to wit, under which contract did Smith or his firms really proceed and pay the rent? Of course the determination of that question would involve a consideration of all the evidence in the case, as well that which indicates a holding under the written lease as that which indicates a holding under the verbal contract made by Dewar with Lane. We will not discuss nor even enumerate any of those facts, nor will we discuss or decide the other questions which are raised in the paper-books. It will be time enough to do that when the whole merits of the case are presented. We sustain the sixth specification of error and say nothing about the others except that we do not sustain the fourth or fifth specifications. Judgment reversed and new venire awarded.