Maul v. Schultz

Hunt, J. The record discloses that this case was bitterly contested on both sides. Scarcely any material testimony was offered without objection. Error is assigned upon many of the rulings of the court thereon, and upon the instructic ns given to the jury. As we understand the position of the parties, it is substantially this: Plaintiff sued for the reasonable value of the use of the premises occupied by the defendants. The defendant Carl Schultz set up a written lease by plaintiff with him alone for two years, with over a year still to run, and contended that the lease had been modified by parol agreement by a reduction of the monthly rent, and that he owed plaintiff nothing. Plaintiff, by replication, admitted that a written lease had been made with Carl Schultz, but averred that, instead of there having been a modification of it, there had been a complete annulment of said lease, and that a new agreement had been made between himself and both defendants, whereby both Mr. and Mrs. Schultz became his joint tenants at the agreed rental of $200 per month from October 20, 1893. Plaintiff does not seek to collect more than $200 ' per month, and is not attempting to do this under any written agreement. His effort is to hold both defendants as tenants from month to month without looking to Mr. Schultz alone under the written lease; and, as defendants depend upon the written lease as modified, the case involves the first material inquiry whether there was any annulment at all of the written lease. If there was, then the further question of the alleged joint tenancy of defendant becomes important; while, if there was not, Mrs. Schultz’s relation to plaintiff may be eliminated and it is only necessary to ascertain the attitudes of the other respective parties under the defendants’ contention of the alleged modification of the written lease between plaintiff and Carl Schultz. For the purpose of proving that there was an annulment of the lease, plaintiff offered evidence to the effect that about No [339] vember 7, 1893, Maní and both defendants had some conversation about repairing water and closet pipes, Maul saying that they (meaning defendants) should keep them in repair. Inasmuch as the written lease between plaintiff and Carl Schultz provided that the lessor should pay for any repairs or breakages in the water pipes, appellant argues that this uncontradicted testimony is proof of an annulment of the lease. But, in view of the other statements made by the same witness who testified as above, and of the testimony of plaintiff’s other witnesses, we think there is no substantial evidence tending to prove any rescission of the lease between the parties to it. The same witness just referred to said that he was introduced to the defendants by Maul, the owner of the premises, in the beginning of November, 1893, as the new rent collector, whereupon Mr. Schultz said he did not care who collected the rent. Maul thereupon said: “These people (referring to the defendants) will pay you $200 on the 20th of every month in advance. ” . It is a fair inference from the testimony that the remark of defendant Carl Schultz that he did not care who collected the rent was simply meant to be a statement to the plaintiff that it was immaterial to him to what individual he paid moneys due to the plaintiff under the lease. The witness also said that, although they had some conversation such as has been given concerning the repair of water pipes, they made no agreement with reference to them. A witness named Hirbour, who was called by the plaintiff, testified that he executed the written lease as the agent of plaintiff, and had acted as his agent for 15 years before he turned over his agency, about November 20, 1893, and that within his knowledge there was a verbal modification of the written lease, by which, instead of charging Dr. Schultz $350 a month rent, as called for by the lease, he only charged him $250 a month, and that this agreement was made at the time of the last payment to the witness, which was by a check on November 20, 1893. Another witness (Collins), who was a partner of the witness Yaeger in the agency for the collection of rents due to plaintiff, testified that the new arrangement made with Dr. Schultz [340] or the Schultz firm pertained to the reduction of the rent to a certain amount, and that the instructions to the witness and his partner were to collect $200 a month as rent for the building. Taking all this testimony together, we are clearly of the opinion that the plaintiff failed to prove any rescission or modification of the contract of lease except as to the single item of reduction of rent. It was, therefore, error for the court to submit the question of the alleged0 rescission of the lease to the jury at all, and it follows that the question of any alleged joint tenancy of both defendants became immaterial to the case. The jury, by their verdict, however, rejected the theory of an annulment, and plainly sustained the defense set up by the defendants as to the reduction of the rent or modification of the lease. It must be remembered that the plaintiff objected to all evidence tending to show a modification of the lease upon the ground that no such evidence was admissible under the statute of frauds (Compiled Statutes of 1887, page 652, § 219), which provides that: ‘ ‘Every contract for the leasing for the longer term than one year, or for the sale of any lands, or interest in lands, shall be void unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made.” But is the plaintiff in a position to complain of the error of the court ? We think not.. He sued for reasonable value, and by his own evidence proved that a written lease existed between himself and Carl Schultz. His theory was erroneous, yet he was awarded a verdict against his lessee, based upon the written lease which was the contract he himself proved on the trial, but which he proved had been modified as to monthly rent due thereunder. Conceding that a written lease with over a year yet to run cannot be modified by parol agreement, we nevertheless think plaintiff cannot raise that question in this case. He never asked for the amount of the rent under the lease, and upon a motion for a nonsuit would doubtless have been properly dismissed from court. Yet he tried his case, and recovered all he was en [341] titled to under his own evidence, and from the only person who owed him anything. He cannot be permitted to mend his hold after litigation has begun, change his ground, and upon new aspects of the case shift his position from that taken and relied on before the court. (Newell v. Meyendorff, 9 Mont. 254, 23 Pac. 333; Newell v. Nicholson, 17 Mont. 389, 43 Pac. 180.) Plaintiff has no right to recover except as against Carl Schultz for rent due. Accordingly, he is in no position to have a verdict in his favor set aside. We, therefore, think that his rights have not been prejudiced, and that his verdict against Carl Schultz must stand. No point is made by appellant against the justice of the award against both defendants upon the amount found to be due upon an account owing by defendants to one Berghold, and by Berghold. assigned to plaintiff. The judgment is affirmed. Affirmed. Buck, J., concurs. Pemberton, C. J., not sitting.