Theo. Hamm Brewing Co. v. Wiggam

WHITING, J.

(dissenting.) Inasmuch as Yokum had undisputed power to rent the premises and did re-rent a part of the same, the law will presume that, as his principal, the plaintiff had notice of such re-rental, which re-rental was negotiated prior to the vacation of the premises by the defendant; Such notice of re-rental was sufficient to put plaintiff upon his inquiry as to why the premises were being rented when there had been given a lease to defendant covering an unexpired period of some eight months. Having this notice which should put plaintiff upon its inquiry, it must be presumed .that the plaintiff was advised of the true facts, and, if the defendant did surrender said premises to Yokum as agent of the plaintiff, the plaintiff could not remain silent and allow the leasing of said premises to a third person without by so doing ratifying the acts of its agent and being bound thereby. It therefore became necessary to determine whether or not the defendant abandoned said premises or whether he surrendered the same to the said Yokum. There was some evidence received tending to., show that the premises were surrendered to and accepted by Yokum. The charge of the court to the jury is not before us, and it must be presumed that the jury were correctly advised in relation to what was necessary in order to show a surrender of the premises.

The appellant assigns error in the ruling of the trial court admitting evidence concerning defendant’s opportunities for subleasing of parts of said premises and requests to Yokum to be allowed to sublease same, and concerning defendant’s advising Yokum that, if so allowed to sublease, he would continue to hold the premises under the lease, while otherwise he would be compelled to vacate such premises. Inasmuch as there was a specific provision in the lease under which defendant covenanted not to sublease the same, this evidence was clearly incompetent, but we are unable to see wherein it could have worked any prejudice to the plaintiff by misleading the jury upon the sole question of fact —whether or not there was a surrender of the premises — and, further, it must be presumed that the trial court, in its instructions, properly advised the jury upon this matter.

*618It is also contended that there was reversible error committed by counsel for defendant in his argument to the jury, and it must be conceded that there were several statements made by counsel that found no support whatever in anything appearing in the record herein, and which statements were improper, but, in view of the fact that the trial court does not seem to have considered these remarks prejudicial to the plaintiff, and, in view of the fact that the trial court, by its instructions may have removed all possible danger of any prejudice resulting from such remarks, we do not think that this court would be justified in reversing the decision of the trial court, although we certainly would have sustained the. trial court if it had seen fit to grant a new trial for the reason complained of.