
    MAUL, Appellant, v. SCHULTZ et al., Respondent.
    [Submitted March 23, 1897.
    Decided April 5, 1897.]
    
      Lease — Modification—Annulment—Evidence—Estoppel.
    Lease Modification^-Annulment. — Plaintiff sought to recover for the reasonable value of the use of premises; defendant pleaded a written lease and modification thereof; in the replication, plaintiff denied the modification and alleged the annulrm nt of the lease. Held, that upon the evidence, it appears that the lease was modified and not annulled.
    
      Same — Ei-idenee—Estoppel.—Where plaintiff sues to recover the reasonable value o£ the use of premises, and proves a written lease and an oral modification thereof, he is estopped from objecting to evidence proving the modification of the lease by way of reduction of rent.
    
      Appeal from District Court, Silver Bow County. William 0. Speer, Judge.
    
    Action by Charles Maul against Carl Schultz and Mary Schultz to recover rent. From a judgment for a smaller amount than that claimed, and from an order denying a new trial, plaintiff appeals.
    Affirmed.
    Statement of the case by the justice delivering the opinion.
    This was an action by plaintiff and appellant, Maul, against the defendants, to recover $647 for the use of certain premises occupied by the defendants as tenants of plaintiff from November 20, 1893, until February 10, 1894, and also to recover the sum of $75 upon an account alleged to be due by defendants to one Berghold' for labor, which said account was by said Berghold sold and assigned to this plaintiff. The defendants filed separate answers. In the answer of Carl Schultz it is'admitted that he occupied the premises during the time mentioned in the complaint, but denied that the premises were reasonably worth $647, or any greater sum than $200 per month during the time they were so occupied. The defendant then pleaded a-payment of rent up to December 20, 1893, and admitted the debt for rent from that time until February 10, 1894 at a monthly rental of $200, amounting to $333.33, but that the said sum of $333.33 was subject to certain offsets. For further defense the defendant alleged that about February 20, 1893, he entered into a written lease with the plaintiff for the premises involved for the term of two years from February 20, 1893, for $8,400, payable in monthly installments of $350 per month during the term of the lease; that in pursuance of said lease he took possession and remained therein until about October 27, 1893, when, by mutual consent, the rent was reduced from $350 to $200 per month, but that all other terms and conditions expressed in the lease remained and continued in force, as the contract between the parties; that in pursuance of said modification and reduction of rent the defendant paid and the plaintiff accepted $200 per month in full payment for the rent for the months of November and December, 1893; that on December 14, 1893, the plaintiff served notice on defendant to quit, which defendant refused to do, and continued in the premises until February 10, 1894; that plaintiff also served notices on one J. R. -, and on Mary Schultz, ordering them to vacate, and that they were subtenants of part of said premises under defendant, and that in consequence of said notices the subtenants vacated the premises, and for want of other tenants the defendant was compelled and did surrender up the premises to plaintiff on February 10, 1894; that prior to the serving of said notices on the subtenants and their vacating, defendant was receiving $300 per month for-rent, and would have continued to receive that amount during the continuance of the lease, had it not been for the plaintiff’s act in demanding possession of .the premises from the defendant and his subtenants. Defendant claimed damages by reason of said acts of plaintiff in the sum of $1,366. For further defense defendant alleged that by the terms of the lease mentioned plaintiff was to pay for repairs and breakages in water pipes, and for defects that might occur in the roof of the building; and that by reason of the negligence of the plaintiff to comply with the terms of the lease he was obliged to pay out $23 on plaintiff’s account. As to the second cause of action defendant denied any indebtedness to Berghold. The defendant Mary Schultz, by her answer, denied that she occupied the premises by permission of plaintiff as his tenant, and for an affirmative defense she pleaded that-she occupied the premises as an undertenant of Carl Schultz. She also denied any indebtedness to Berghold, but alleged that Berghold was justly indebted to her in the sum of §23 for goods and merchandise. The plaintiff, by replication, denied any modification in the contract of lease, but alleged the fact to be that on October 27, 1893, the lease originally made between the parties was wholly annulled, and that from that time plaintiff recognized the defendants, Carl and Mary Schultz, as joint tenants, and that they occupied the same jointly as his tenants from month to month, and that for the month commencing October 20, 1893, and ending November 20, 1893, defendants occupied the premises as tenants of plaintiff at the agreed rental for said month in the sum of §200. Plaintiff denied that the copy of the lease made part of the answer of Carl Schultz was a true copy of the agreement between plaintiff and defendants. The plaintiff denied that defendants fully paid the rent up to December 20, 1893, but alleged that the defendants, Carl and Mary Schultz, as tenants of plaintiff, paid rent for the month commencing November 20, 1893, and ending December 20, 1893, in the sum of §135, and no more, and that the defendants refused to pay the rent of §200 for the month commencing November 20, 1893, and that thereupon plaintiff, on February 2, 1894, served on each of the defendants a demand in writing for the possession of the premises. Plaintiff denied that there were any subtenants as alleged. and denied all damage. In a separate reply to the answer of Mary Schultz, plaintiff denied that she was the tenant of Carl Schultz, and that Berghold was indebted to her in any sum. The case was tried to a jury. A verdict was returned in favor of plaintiff and against Carl Schultz for §398.33, and against Mary Schultz for the sum of §31.75. Amotion for a new trial was made and overruled. Plaintiff appeals from the judgment rendered on the verdict, and from the order overruling his motion for a new trial.
    
      
      F. T. McBride and John T. Baldwin, for Appellant.
    
      S. De Wolfe, for Eespondent.'
   Hunt, J.

The record discloses that this case was bitterly contested on both sides. Scarcely any material testimony was offered without objection. Error is assigned upon many of the rulings of the court thereon, and upon the instructic ns given to the jury. As we understand the position of the parties, it is substantially this: Plaintiff sued for the reasonable value of the use of the premises occupied by the defendants. The defendant Carl Schultz set up a written lease by plaintiff with him alone for two years, with over a year still to run, and contended that the lease had been modified by parol agreement by a reduction of the monthly rent, and that he owed plaintiff nothing. Plaintiff, by replication, admitted that a written lease had been made with Carl Schultz, but averred that, instead of there having been a modification of it, there had been a complete annulment of said lease, and that a new agreement had been made between himself and both defendants, whereby both Mr. and Mrs. Schultz became his joint tenants at the agreed rental of $200 per month from October 20, 1893. Plaintiff does not seek to collect more than $200 ' per month, and is not attempting to do this under any written agreement. His effort is to hold both defendants as tenants from month to month without looking to Mr. Schultz alone under the written lease; and, as defendants depend upon the written lease as modified, the case involves the first material inquiry whether there was any annulment at all of the written lease. If there was, then the further question of the alleged joint tenancy of defendant becomes important; while, if there was not, Mrs. Schultz’s relation to plaintiff may be eliminated and it is only necessary to ascertain the attitudes of the other respective parties under the defendants’ contention of the alleged modification of the written lease between plaintiff and Carl Schultz.

For the purpose of proving that there was an annulment of the lease, plaintiff offered evidence to the effect that about November 7, 1893, Maní and both defendants had some conversation about repairing water and closet pipes, Maul saying that they (meaning defendants) should keep them in repair. Inasmuch as the written lease between plaintiff and Carl Schultz provided that the lessor should pay for any repairs or breakages in the water pipes, appellant argues that this uncontradicted testimony is proof of an annulment of the lease. But, in view of the other statements made by the same witness who testified as above, and of the testimony of plaintiff’s other witnesses, we think there is no substantial evidence tending to prove any rescission of the lease between the parties to it. The same witness just referred to said that he was introduced to the defendants by Maul, the owner of the premises, in the beginning of November, 1893, as the new rent collector, whereupon Mr. Schultz said he did not care who collected the rent. Maul thereupon said: “These people (referring to the defendants) will pay you $200 on the 20th of every month in advance. ” . It is a fair inference from the testimony that the remark of defendant Carl Schultz that he did not care who collected the rent was simply meant to be a statement to the plaintiff that it was immaterial to him to what individual he paid moneys due to the plaintiff under the lease. The witness also said that, although they had some conversation such as has been given concerning the repair of water pipes, they made no agreement with reference to them. A witness named Hirbour, who was called by the plaintiff, testified that he executed the written lease as the agent of plaintiff, and had acted as his agent for 15 years before he turned over his agency, about November 20, 1893, and that within his knowledge there was a verbal modification of the written lease, by which, instead of charging Dr. Schultz $350 a month rent, as called for by the lease, he only charged him $250 a month, and that this agreement was made at the time of the last payment to the witness, which was by a check on November 20, 1893. Another witness (Collins), who was a partner of the witness Yaeger in the agency for the collection of rents due to plaintiff, testified that the new arrangement made with Dr. Schultz or the Schultz firm pertained to the reduction of the rent to a certain amount, and that the instructions to the witness and his partner were to collect $200 a month as rent for the building. Taking all this testimony together, we are clearly of the opinion that the plaintiff failed to prove any rescission or modification of the contract of lease except as to the single item of reduction of rent. It was, therefore, error for the court to submit the question of the alleged0 rescission of the lease to the jury at all, and it follows that the question of any alleged joint tenancy of both defendants became immaterial to the case.

The jury, by their verdict, however, rejected the theory of an annulment, and plainly sustained the defense set up by the defendants as to the reduction of the rent or modification of the lease. It must be remembered that the plaintiff objected to all evidence tending to show a modification of the lease upon the ground that no such evidence was admissible under the statute of frauds (Compiled Statutes of 1887, page 652, § 219), which provides that: ‘ ‘Every contract for the leasing for the longer term than one year, or for the sale of any lands, or interest in lands, shall be void unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made.” But is the plaintiff in a position to complain of the error of the court ? We think not.. He sued for reasonable value, and by his own evidence proved that a written lease existed between himself and Carl Schultz. His theory was erroneous, yet he was awarded a verdict against his lessee, based upon the written lease which was the contract he himself proved on the trial, but which he proved had been modified as to monthly rent due thereunder. Conceding that a written lease with over a year yet to run cannot be modified by parol agreement, we nevertheless think plaintiff cannot raise that question in this case. He never asked for the amount of the rent under the lease, and upon a motion for a nonsuit would doubtless have been properly dismissed from court. Yet he tried his case, and recovered all he was entitled to under his own evidence, and from the only person who owed him anything. He cannot be permitted to mend his hold after litigation has begun, change his ground, and upon new aspects of the case shift his position from that taken and relied on before the court. (Newell v. Meyendorff, 9 Mont. 254, 23 Pac. 333; Newell v. Nicholson, 17 Mont. 389, 43 Pac. 180.) Plaintiff has no right to recover except as against Carl Schultz for rent due. Accordingly, he is in no position to have a verdict in his favor set aside. We, therefore, think that his rights have not been prejudiced, and that his verdict against Carl Schultz must stand.

No point is made by appellant against the justice of the award against both defendants upon the amount found to be due upon an account owing by defendants to one Berghold, and by Berghold. assigned to plaintiff. The judgment is affirmed.

Affirmed.

Buck, J., concurs. Pemberton, C. J., not sitting.  