Tweedie v. P. E. Olson Hardware & Furniture Co. , 98 Minn. 11 ( 1906 )

•LEWIS, J.

Upon a former appeal of this action (96 Minn. 238, 104 N. W. 895) we at first directed judgment to be entered for appellant upon the ground that it conclusively appeared from the evidence that both of the joint tenants did not exercise the option to renew the lease, and upon application for reargument the order was modified and a new trial granted.

After that decision respondent Pherson amended his answer by alleging that since the commencement of the action appellant had received and accepted from him one-half of the rent due under and pursuant to the terms of the lease from May to December, 1905, thereby renewing the lease for the full term of two years. The trial court instructed the jury that they should determine from the- evidence, in the first place, whether the option to renew the lease had been exercised by both tenants, and, if they should find that it had been, then their verdict must be for respondents; but, if they should find that the option to remain had not been exercised by both of them, then the further question should be determined whether respondents had paid rent subsequent to the commencement of the action, and whether the same had been accepted by appellant with the intention of renewing the lease for the further period of two years. The court also instructed the jury to determine from the evidence whether the Olson Company acted in good faith in giving notice to appellant that it would not renew the lease in conjunction with the joint lessee, Pherson.

It is evident that the tenants did not get along harmoniously. Two lawsuits were necessary to determine their rights under the lease. The Olson Company frankly admits that it did not propose to rent for the ensuing two years unless the co-tenant, Pherson, was dispossessed, and the evidence presented a fair question for the jury to decide whether or not the owner and the Olson Company were acting in good faith in refusing to exercise the option to renew the lease, and whether they did or did not have a private understanding that the Olson Company should be permitted to lease the entire premises., provided it could get rid of the other tenant. The court was also justified in taking the opinion of the jury upon the question whether or not the rent paid subsequent to the commencement of the action was paid and received subject to the rights of the parties to be determined upon the case then on appeal, with the intention of recognizing the lease as having been renewed for the ensuing term.

'We have been unable to discover any errors in the record, and the judgment is accordingly affirmed.