Grigsby v. Western Union Tel. Co.

Citations

• 5 S.D. 561
• 59 N.W. 734
• 1894 S.D. LEXIS 91

Syllabus

<p>1. There is a very obvious difference between a parol agreement to make a written lease and a parol lease with a further or incidental agreement that it shall be put in writing. In the one case the making of the writing is the subject of the agreement, and only that can execute it; in the other, the subject is the act or fact of present leasing-, and its subsequent reduction to writing- is incidental only.</p> <p>2. Whether a parol agreement constitutes an actual lease, or simply an agreement for a lease, must, in general, depend upon what appears to be the paramount intention of the parties.</p> <p>3. Upon the evidence in this case, held, that the agreement constituted a lease, and that such lease was for a term of one year, and not from month to month.</p> <p>4. Where the agreement or lease was made on the-part of appellant by its local agent or manager, and all the circumstances go to show that he was authorized to make it and the appellant, presumed to have absolute knowledge upon the question, makes no attempt to disprove his authority, the trial court may treat his authority as proved.</p> <p>5. But if, upon the evidence, such question was one of fact for the jury, appellant waived its submission to the jury by treating the case as presenting questions of law only, and moving the court to direct a verdict in its favor, and making no claim or request to have the case submitted to the jury.</p> <p>6. The court having adopted appellant’s theory that the case presented questions of law only, the fact that it decided the law questions adversly to appellant did not, in the absence of an express request to submit, relieve appellant from the effect of his concession that there were no questions of fact in the case.</p> <p>(Syllabus by the court.</p>