Faville v. Lundvall & Co.

76 N.W. 512, 106 Iowa 135

• Court: Supreme Court of Iowa
• Decided: October 5, 1898
• Status: Published

Opinion

Given, J.

I. We have no argument for appellees. There was no dispute as to Faville’s authority to execute the lease, but whether authorized or not, both parties recognized the lease by giving and taking possession and by paying and receiving rent under it. The defense relied upon is the alleged cancellation of the lease. The burden was on the defendant to establish that allegation, and this, we think, they failed to do. Authority to Faville to make the lease did not carry with it authority from Gregory to cancel it; much less would authority from Gregory to make the lease carry with it authority from Howes’ assignee of the lessee, to cancel it. The allegation is that “the lease set out in plaintiff’s petition was by oral agreement canceled, and by agreement with the plaintiff, or his agent and attorney, F. F. Faville, the defendants vacated said premises, and were released from further responsibility in connection with the lease contract.” There is not a syllable of evidence that Ilowes ever agreed to a cancellation of the lease or vacation of the premises, nor that he ■ever authorized Faville to malee such an agreement. Neither is there any evidence that Gregory ever authorized such an .agreement. The defendants Lundvall and Nordstrom testified to a conversation with Faville in which they asked him if he would cancel the lease, as they had a chance to rent the new'building, and that he said that, if it was a favor to them, he would see that the lease was cancelled at the time they were ready to move, and that they did not pay him anything for the release. It may well be questioned whether this shows •an-agreement to release, but, in view of what we have, said to Faville’s want of authority, we think there was no evidence to sustain the allegation of a release. — Reversed.