Baehr v. Penn-O-Tex Oil Corp.,

258 Minn. 533, 104 N.W. 2d 661 (1960)

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Nature of the Case

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Facts

P leased gasoline filling stations to one Kemp, doing business as Webb Oil Company. Kemp was purchasing the business known as Webb Oil Company and certain related property from D. Kemp was heavily indebted to D. Kemp became unable to meet payments. On December 10, 1955, Kemp gave D an assignment of accounts receivable and to become receivable, including those involving P's filling stations. D collected rents paid by the operators of the filling stations, received other payments made to Webb Oil Company, paid some of its debts at Kemp's direction out of these sums, and installed its agent in the office to run the business. P received a letter dated December 28, 1955, from Kemp, stating that D had all of Kemp's assets tied up. P called D's agent to ask about payment of the filling station rents. P was told 'that Mr. Kemp's affairs were in a very mixed up form but that he would get them straightened out and mail checks for the rent.' P wrote a letter to D asking what he had to do to get his rent checks and adding: 'Or will I have to give it to an attorney to sue.' D replied by letter stating it was attempting to assist Kemp in keeping the business going, 'but in no way are operating or taken possession.' D denied knowledge of or responsibility for any rent due P. P again called D and asked for his rent. D's agent then told P it would be taken care of. The rent was not paid, and in April or May 1956 P returned to Minneapolis from Florida. P sent D a letter advising that he was reentering and taking possession under the leases of the filling stations and because of failure to receive rent. P sued for rents due on the filling stations for the period December 1, 1955, through June 2, 1956, upon the grounds that D was in possession of the stations and had contracted to pay the rent during this period. The court ruled that D neither took possession of the filling stations nor an assignment of Kemp's leases. D then presented evidence on the issue of a contract to pay the rents, and this issue was submitted to the jury under proper instructions. The amount that would be due under such a contract was agreed upon; and the jury returned a verdict for P in that amount. The district court granted D's motion for judgment notwithstanding the verdict; and ordered a new trial in the event of reversal. P appealed.