Chandler v. McGinning , 8 Kan. App. 421 ( 1898 )

The opinion of the court was delivered by

Mahan, P. J.:

Under his first assignment of error, the plaintiff has not complied with the rule of this court in setting out the evidence rejected by the court below, nor is any mention made of such evidence in the argument contained in the brief. We will not give it any consideration.

Under the second assignment of error, plaintiff contends that there was sufficient evidence to go to the jury upon the contention that there was a forfeiture and determination of the lease by a reentry for nonpayment of rent. It is well settled that no forfeiture can be declared for non-payment of rent without a demand therefor, and it is admitted that no such demand was made. There was an attempt to reenter, but it was without lawful authority and resulted in nothing. The supreme court decided, in Kellogg v. Lewis, 28 Kan. 535, that a justice has no equitable jurisdiction or power and can only determine the rights of parties as they appear at law, and that the jurisdiction of the district court on appeal is the same as that of the justice, the title to the premises not being in dispute ; hence, the district court has no jurisdiction to decree a forfeiture in such a case.

The next contention is that there was sufficient evidence to go to the jury on the claim that there was an election on the part of the defendants not to avail themselves of the extensions provided for in the lease. It is not put squarely on this ground by counsel, but this is the legal effect of the contention. It is doubtless the law that such election may be exercised before the last day of the term expressed in the lease. There was evidence that ought to have been submitted to the jury that the defendants had elected to terminate the lease on the 1st day of August, or rather not to take advantage of the extension provided for. There was evidence tending to show that the plaintiff had relied on this election, to the knowledge of the. defendants. Under proper instructions, the case should have been submitted to the jury to determine whether the defendants had so elected not to avail themselves of the privilege of the extension. Counsel for plaintiff in error contends, under this assignment, that it was necessary that the lessees give due notice of their election before the termination of the six months’ term. There was no requirement of notice in the contract, and it is well settled that where none is required, none need be given. Nevertheless, it was the privilege of the landlord to call on the defendants to exercise their option, so that he might be advised and shape his plans accordingly, and he might rely on such election.

Because of this exclusion of evidence, the judgment of the district court must be reversed, with instructions to award to the plaintiff a new trial.