O'Neal v. Bainbridge

Citations

• 94 Kan. 518
• 146 P. 1165
• 1915 Kan. LEXIS 118

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Lease — Total Destruction of Building by Fire — Question of Fact for Jury. Whether or not a building has been totally destroyed is ordinarily a question of fact for the jury.</p> <p>2. Lease — Partial Destruction of Premises — Tenant May Continue in Occupation. A tenant, occupying a part of a building under a written lease, may continue to hold under the lease, although the part occupied has become uninhabitable by reason of a partial destruction by fire.</p> <p>3. Lease — (Cancellation—Both Parties Must Agree. The cancellation of a lease, by act of the parties, must have the consent of both lessor and lessee.</p> <p>4. Lease — Wrongfully Canceled by Lessor — Measure of Damages — Loss of Profits. Loss of profits, when they can be ascertained, is a proper measure of damages for wrongfully refusing to permit a tenant to occupy the premises covered by a lease.</p> <p>5. Trial — No Error in Instructions. An examination of the . instructions discloses no error.</p> <p>6. Lease — “Damages by Elements Excepted” — Includes Damages by Fire. Fire is one of the elements included in the expression “damages by the elements excepted,” where that phrase is used in a lease of a building.</p> <p>7. Evidence — Exclusion of Evidence — Not Properly for Review. Before the supreme court can reverse a judgment on account of the exclusion of evidence, that evidence must be presented to the trial court when the motion for a new trial is heard.</p> <p>8. Judgment — Must Be on Verdict — When Triable to Jury. Judgment on the evidence should not be rendered by a trial court when a jury is a matter of right and there is evidence sufficient to submit to the jury.</p>