Esshom v. Watertown Hotel Co.

Citations

• 7 S.D. 74
• 63 N.W. 229
• 1895 S.D. LEXIS 36

Syllabus

<p>1. Where a lease of an hotel contains a stipulation for the payment of rent monthly, and. a stipulation for the purchase of the hotel furniture by tile lessees at a fixed price, payable in installments, and also contains the further stipulation that “the articles so purchased shall be held by the party of the first part [the lessor] as a pledge and lien for the performance of the agreement,” and that the possession of the same shall not pass out of the lessor, the lessor has a lien upon such furniture for all the installments stipulated to be paid as the purchase price of the same, and also for all rent that may accrue under such lease, as against the lessees and all persons claiming such furniture under the lessees with actual notice of the lien.</p> <p>2. When, on the trial of an action in claim and delivery, by one claiming title to the furniture described in such lease by purchase from the lessees, with notice that the lessor has a lien thereon for the purchase price of such furniture, and also for rent that may accrue, and if appears that at the time such action was instituted there was due and unpaid to said defendant an installment upon the furniture, and two or more months’ rent, the plaintiff is not entitled to recover in such action.</p> <p>3. And when, upon the trial of such action, the plaintiff introduces such lease' in evidence, the defendant may avail itself of the stipulations in such lease establishing' its lien upon the property claimed in the action, and as precluding a recovery by the plaintiff, without pleading such lien as an affirmative defense to the action.</p> <p>(Syllabus by the Court.</p>