Aull v. Bowling Green Opera House Co.

Opinion of the Court by Judge Nunn — Reversing and Affirming. Prior to the 25thl day of September, 1905, there was pending an action in equity to settle the estate of the Potters. The court ordered a sale of the opera house and the storerooms under it, which were a part of the property, and Dr. Combs, H. D. Fitch, James Barclay, W. H. Miller, and T. L. Fitch, jointly pur. chased the property. Appellant Aull had occupied the corner room of this building for six or seven years prior to that date, under a lease from the Potters. His lease expired the 31st day of December, 1905. Appellant applied to Combs and one of the Fitches for a renewal of Ms lease, and they informed Mm that they were going to lease the room to the highest and best bidder, and, in substance, requested him to make a bid in writing, place it under seal, and present it to them on the 29th day of December. This he did, and his was the highest and best made; it being $1,262 per year. He failed in preparing his bid to state the term of years that he would take the room, at the price of his bid. Fitch took the paper to the store of appellant and called his attention to this omission, when, at the request of Fitch, he added to it these words: “This bid is for three years.” Appellant and several witnesses say that, when tMs was done, appellant said to Fitch: — 792 — “What assurance have I that I will get the lease?” And Pitch answered; “Yours is the highest and best bid. I control three-fifths of the property, and I will' sign the' paper. ’ ’ They also claim that Fitch wrote his name on the same paper under the name of appellant. Appellee denied that Pitch signed the paper. The original is before us, and there is no evidence that Pitch signed the paper, except a blur under the name of appellant. A few days after this occurrence, Barclay, one of the purchasers at the commissioner’s sale, sold his interest in the property to G. T. Wilson, a druggist, who., with the other owners, caused to be prepared articles of incorporation, and organized a corporation known as the “Bowling Green Opera House Company,” and it leased the building referred to to George T. Wilson, at the price of $1,000 a year, to be used as a drug store. The original purchasers at the sale made a written assignment of their bid, for the property, to the appellee, and directed that the commissioner convey to it the property. The commissioner complied with this request, and appellee asked and obtained from the court a writ of possession. Appellant received information of this, and appeared- in court and offered to file his petition asking to be made a party to that action, .claiming that he had a lease for a term of three years of this building, which lease was executed by the purchasers of the property at the decretal sale and before they assigned their bid to appellee. The court refused to allow this petition to be filed. Appellant appealed from that order to this court, and the judgment was reversed. 122 Ky. 621, 92 S. W. 943. Appellant remained in the building for the year 1906. After the 1st day of January, 1907 appellee' obtained from the county — 793 — court judge of Warren county a writ of forcible detainer against appellant Aull; but on tbe day set for trial the parties agreed on a judgment, to tbe effect that appellee was entitled to possession of tbe storeroom, that tbe writ to dispossess appellant was not to issue for 30 days thereafter, giving appellant time to move bis stock of drugs, and also declared what property and fixtures in tbe building be was permitted to remove therefrom. It appears that appellant surrendered possession of tbe property to appellee on tbe 10th day of February, 1907. Appellee, on tbe 28th day of January, 1907, instituted this action against appellant to recover tbe rent due it. In its petition it fixed $1,250 as tbe reasonable rental value for tbe year 1906, and at tbe same rate to tbe 22d day of January, 1907, and there was due it a total of $1,319.78, for which it prayed judgment against appellant, and alleged that appellant' bad wrongfully withheld tbe possession of tbe property from it, and' asked a judgment for double that sum. Appellant answered denying that tbe reasonable rental value of tbe property was $1,250 a year, and alleged that it was not worth more than $600 per year. He also presented a counterclaim for something over $1,400 in damages, which be alleged be bad sustained by reason of tbe acts of appellee in instituting, wrongfully and maliciously, illegal proceedings against him in an effort to recover tbe property, putting him to great expense in employing counsel in tbe lower court and tbe Court of Appeals, traveling expenses, in paying witnesses, and the loss of time from bis business in defending the actions. Tbe court sustained a demurrer to tbe answer in so far as it presented this counterclaim. Proof was taken by depositions, and upon tbe trial tbe court — 794 — fixed a reasonable rental value o'f tbe property for the year 1906 at $1,262, and $140.22 for tbe time from the 1st of January to the 10th of February, 1907. From this judgment appellant appeals, and complains that the court fixed the reasonable rental value of the property at too much, and gave a judgment against him for more than appellee asked for in its petition, and for the further reason that the court erred in sustaining a demurrer to his counterclaim. Appellee obtained a cross-appeal asking a reversal for tbe reason that the court erred in not giving it judgment for double rent, or, in other words, a judgment for double the sum of the judgment which was rendered in its behalf. We will consider these questions in the reverse order. Appellee claims that it is entitled to dorfble rent under the provisions of section 2293, Ky. St. 1903, which provides that a tenant whose term expires at a time certain, who shall refuse to deliver possession, or a tenant who, having entered under an agreement to dispense with notice, refuses to deliver possession when the same is demanded, shall pay to the landlord double the rent he would have otherwise been bound to pay, to be computed from the time he should have surrendered possession, recoverable in tbe same manner as tbe original rent. As we construe this section, it means that if a tenant, knowingly and wrongfully, remains in the possession of property, not believing nor having any reason to believe that he has a right to remain in possession thereof, and refuses to- deliver to his landlord possession of the property, then be may be adjudged to pay double rent. The case before us.is not of that character. Appellant had what he had reason to believe was a binding contract with the landlord, which permitted — 795 — Mm to remain in possession of the property, as tenant, for a term of three years, and such a contract as courts might differ as to the effect of, and his remaining in possession of the property, under such circumstances, ought not to place upon Mm the liability of paying double rent, and the court did not err in failing to charge him with it. The same may be said with reference to appellant’s claim of error on the part of the court in sustaining a demurrer to his counterclaim. The contract of rent claimed by appellant was of doubtful effect, and' many lawyers and judges might have concluded that it was not valid and did not give appellant the right of possession of the property, while others might have taken a contrary view. In view of these facts, appellee should not have been mulcted in damages for attempting to have the court declare the contract void — it had probable cause for believing that it had a just and meritorious claim to the possession of its property. We are of the opinion, however, that the lower court erred in fixing the reasonable rental value of the property for the time appellant occupied it. The court fixed the amount at a sum greater than appellee claimed in its petition by nearly $100. Not a witness in the case fixed the rental value at a greater sum thán $1,200, and it was fixed in the' petition at $1,250. Appellant’s witnesses fixed the rental value from $600 to $800 After carefully considering all the testimony, we are of the opinion that $1,100 was a reasonable rental value of the property for all the time that appellant was in possession of it as the tenant of appellee It seems that the lower court, in arriving at its judgment, adopted, as the rental value, the price offered by appellant in his bid, $1,262 per year for three years. This was error. — 796 — Appellee did not base its action upon that contract. It only asked for the reasonable rental value. In addition to this, the testimony of appellant shows that his offer of $1,262 per year was made to avoid the expense and trouble of moving his. stock of drugs, and by getting it for three years he avoided' other removals of his stock, and, in addition to this, he had established a good trade at that point which he did not like to give up, and it was for these reasons that he had offered more than the reasonable rental value of the property. For these reasons, the judgment on the cross-appeal is affirmed, and reversed and remanded on the original appeal, with directions to the lower court to render judgment in behalf of appellee for $1,100, with interest at 6 per cent, from the 1st day of January, 1907, and the enforcement of its lien on the property owned by appellant which was in the rented premises. Petition for rehearing by appellee overruled.