Bean v. Katsilometes , 50 Idaho 485 ( 1931 )

Appellant sued respondent for $1,840 under a lease for thirty months, from January 15, 1929, at $70 per month for the first twelve months, and $75 per month for the balance of the time.

Appellant alleged that an oral lease as above, was entered into with the understanding that later a written lease was to be drawn to the same effect, but when so prepared, respondent refused to sign it, and refused to pay after the expiration, June, 1929, of his five months' occupancy of the premises, having paid therefor $70 per month from January, 1929.

Respondent denied the above agreement, and claimed that he had leased the premises for only the five months, the unexpired period of the lease of a former tenant. The appeal is from a directed verdict in favor of respondent.

If reasonable inferences may be drawn from the evidence sustaining appellant's contention, the motion was improperly granted (Keane v. Pittsburg Lead Co., 17 Idaho 179,105 P. 60; Marshall v. Gilster, 34 Idaho 420, 201 P. 711;Pocatello Security Trust Co. v. Henry, 35 Idaho 321, 27 A.L.R. 337, 206 P. 175; Smith v. Marley, 39 Idaho 779, 230 P. 769;First Nat. Bank v. Stringfield, 40 Idaho 587, 235 P. 897;McCornick Co. v. Tolmie Bros., 42 Idaho 1, 243 P. 355;Independent Irr. Co. v. Baldwin, 43 Idaho 371, 252 P. 489;Porter v. Pincock, 44 Idaho 235, 256 P. 93; Cooper v. OregonShort Line R. R. Co., 45 Idaho 313, 262 P. 873; Scrivener v.Boise Payette Lumber Co., 46 Idaho 334, 268 P. 19; Brown v.Jaeger, 46 Idaho 680, 271 P. 464; Adams County v. MeadowsValley Bank, 47 Idaho 646, 277 P. 575; Ashley State Bank v.Hood, 47 Idaho 780, 279 P. 418; Wyland v. Twin Falls CanalCo., 48 Idaho 789, 285 P. 676), the same rule applying to a directed verdict as to a nonsuit. (Smith v. Marley, supra;Servel v. Corbett, 49 Idaho 536, 290 P. 200.)

Appellant testified that she and respondent agreed on a three-year lease, and that she so instructed her scrivener, but the written lease as drawn by her agent and submitted to respondent, was for thirty months.

The scrivener who handled appellant's rental business, testified respondent told him the written lease was to be drawn for thirty months. Thus appellant's own witness contradicts her, and either there was no meeting of the minds, or if we take appellant's testimony for full value, and she may not urge that we disregard it, and it would be unreasonable to do so, the oral agreement was for three years, but appellant alleges, and relies on a thirty months' agreement, an impasse with the burden of proof on appellant, therefore no support of the essential allegation. (McDonnell v. Jones, 25 Idaho 551,138 P. 1123; McConnon Co. v. Hodge, 26 Idaho 376, 143 P. 522;Jones v. Bartlett, 36 Idaho 433, 211 P. 555; Nelson v.Intermountain Farmers' Equity, 36 Idaho 518, 211 P. 550;Keltner v. Bundy, 40 Idaho 402, 233 P. 516; Mahaffey v.McNicoll, 42 Idaho 108, 244 P. 401.)

To sustain the allegations of the complaint, the evidence must lead reasonably to the inference that the minds of the parties met upon the oral agreement stated, i. e., thirty months. (Gaskill v. Jacobs, 38 Idaho 795, at 799, 225 P. 499;Ambrose v. Hyde, 145 Cal. 555, 79 P. 64; 35 C. J. 957, 1143; 36 C. J. 428.)

Respondent denied either a thirty months or three-year lease, and his direct or cross-examination does not aid appellant's allegation of a thirty months' lease. From the testimony no reasonable inference may be drawn that appellant and respondent agreed to a lease for thirty months as alleged and sued for, and the motion was properly granted. (Crabill v. Oregon ShortLine R. R. Co., 34 Idaho 251, 200 P. 121; Geerhart v. FederalLand Securities Co., 35 Idaho 137, 204 P. 1072; Bowman v.Bohney, 36 Idaho 162, 210 P. 135; Munn v. Twin Falls CanalCo., 43 Idaho 198, 252 P. 865.)

It is not a question of variance, but failure of proof to establish the lease alleged. (Holt v. Spokane Palouse Ry.Co., 4 Idaho 443, 40 P. 56; Taylor v. Fluharty, 35 Idaho 705,208 P. 866; Rosendahl v. Lemhi Valley Bank, 43 Idaho 273,251 P. 293; Servel v. Corbett, 49 Idaho 536, 290 P. 200; Rude v.Coulter Tow Boat Co., 119 Wash. 60, 204 P. 801.)

Judgment affirmed. Costs to respondent.

Lee, C.J., and Budge, Varian and McNaughton, JJ., concur.

ON PETITION FOR REHEARING.