Miller v. Barnett

Kellogg, J. (dissenting):

The plaintiffs’ agent, Lefler, agreed upon the terms of a lease with the defendant for one year at $350 per year, the defendant to pay the water rates. The plaintiffs personally had no part in the negotiations. They executed the written lease and it was delivered by the agent to the defendant after she signed it. The lease provided that the rent should be paid in Troy monthly in advance. It was, however, paid to the agent at Saratoga, and he remitted the amount less his commissions to the plaintiffs. The lease was otherwise carried out according to its terms and the rent paid. There is no claim that the terms of the lease were in any way changed by the agent, or otherwise. The term expired May 1, 1911. The defendant remained in possession for the year 1911 and was. in possession in August, 1912, when the plaintiffs brought this action to recover rent, claiming that the defendant was holding under the original lease.

The defendant claimed that at about the time of the expiration of the written lease it was agreed with the agent that the rental should be $300 per year. For the year ending May 1, 1912, $300 only was paid for rent. For the years 1911 and 1912 the pla,intiffs paid the water rates. The court left it to the *871jury to determine (1) whether the agent had the power to rent the premises upon new terms, and (2) whether in fact he did so rent them, and the jury upon sufficient evidence have found with the defendant upon both of those questions. The agent from time to time made repairs upon the premises and permitted the defendant to repair and deduct the amount from the rentals, and the defendant’s testimony tends to show that he had entire control of the premises. The agent and the plaintiff Hale swear that the agent had no power to fix the terms of the lease, but that he was only authorized to obtain tenants and collect rents, the premises to be rented upon terms to be fixed by the plaintiffs. The fact that but $300 was paid for the second year and that for the second and third years the plaintiffs paid the water rates tends to corroborate the defendant’s version that a change was made in the terms of the lease. The plaintiffs knew that they had had no arrangement with the defendant by which they were to pay the water rates; they, therefore, must have understood that the agent had made some new arrangement. Otherwise there is no explanation as to why they paid the water rates.

Upon defendant’s theory the agent had charge of the premises, with full authority to lease them. She had had no relations with any one else. The defendant’s husband had formerly been the owner of the premises, and when the change of ownership took place Mr. Hale, one of the plaintiffs, inquired of him “who would be a good man to put that property into the hands of to rent, ” and he recommended Lefler as such agent. When the evidence was offered as to the oral lease with Lefler it was objected to upon the ground that he had no authority to rent the premises. The court ruled: “Subject to your connecting, as you state you will, the testimony of Mr. Barnett, together with the further fact that Mr. Lefler had been collecting the rent all the time, I will let you ask the question. ” At the close of the case no objection was made that authority was not fully shown. The court left it to the jury to determine upon the evidence, as a matter of fact, whether authority was shown. Plaintiffs raised no further objection and evidently were satisfied that the case should be decided as a question of fact. The plaintiff Hale was interested in the result. *872It was also a question for the jury to determine how far the circumstances made Lefler interested and how far they should give credence to his testimony. If Lefler remitted the rentals, less his commissions, the plaintiffs were fairly chargeable with knowledge that but $300 had been paid for the year expiring May 1, 1912. The written lease was fully performed; the sole question is whether the agent made a new lease after the first one expired, and whether he had such authority depended upon the apparent authority with which the plaintiffs clothed him and the entire acts of the parties and the history of the transaction: The premises were an old livery stable, badly out of repair, and not desirable for rental purposes. The finding of the jury is amply sustained by the evidence, both as to the authority of Lefler and the several agreements for rental.

The finding that the original rental was for $350, payable monthly in advance, and for the second year $300 per year, all of which was paid prior to the termination of the year, and the finding that for the third year the rent was fixed at $200 does not establish that the rental of the last year was not to be paid until the expiration of the time. There was no change in the terms of the lease as to when the rent should be paid. It was, therefore, payable monthly. The jury, therefore, should have rendered a verdict for the plaintiffs for four months’ rental, at the rate of $200 per year, with interest. Under section 1317 of the Code of Civil Procedure we may direct such judgment. (Crowe v. Liquid Carbonic Co., 154 App. Div. 373.) The judgment should be, therefore, reversed and judgment directed for the plaintiffs for sixty-six dollars and sixty-six cents, with interest thereon from August 1, 1912, with costs, in the court below and in this court.

Judgment and order reversed on law and facts, and judgment directed for the plaintiffs for $209.95, with interest from August 10, 1912, with costs. The finding of fact of which the court disapproves is that Myers & Co. were authorized to alter the original lease made between the plaintiffs and defendant, the court holding that there was no evidence on which such finding could be justified.