Arning v. Hartman Motor Co.

PER CURIAM.

In 1928 plaintiff’s predecessors in interest leased to defendant for a five-year term certain premises in the city of Sioux Falls to be used and occupied by defendant for the conducting of its business, consisting of the operation and maintenance of a garage, business office, and automobile showroom. In 1931, claiming that the landlord had permitted the premises to fall into disrepair and continue in such disrepair notwithstanding notice, defendant company vacated the same. The present action was instituted to recover the rent for the unexpired term, and judgment below was directed for the plaintiffs.

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The only question presented by this appeal is 'whether or not the action of defendant-appellant in vacating t'he premises as above stated was justified by the provisions of section 1057, 1058, R. C. 1919. The learned trial judge, relying upon the decision of the territorial court in Edmison v. Aslesen, 4 Dak. 145, 27 N. W. 82 (1886), ruled that it was not. We think such ruling was right, notwithstanding some language in Prior v. Sanborn County, 12 S. D. 86, 80 N. W. 169 (1899), and1 Armstrong v. Thompson, 62 S. D. 567, 255 N. W. 561, 96 A. L. R. 561 (1934), which appears either to overlook, or to be in conflict with, the interpretation of the statute announced by the Bdmison 'Case.

The judgment and order appealed from are therefore affirmed.

RUDODP'H, J., absent and not sitting.