Daniel v. Leben

The opinion of the court was delivered by This was an action to recover damages for an alleged breach of
a written lease of real estate, a business property, in Wichita.
The appeal is from an order overruling a demurrer to the second
amended petition as amended by supplemental allegations, which
pleading will be hereafter referred to as the petition. Omitting formal averments, the prayer, allegations of damages
claimed to have been sustained, and divers allegations of no
consequence to the issues, pertinent portions of the pleading in
question read:

"That on or about the 9th day of December, 1958,
plaintiff entered into a written lease with the said
defendant, by the terms of which plaintiff leased
from the defendant premises . . . for the term
beginning January 1, 1959, and expiring December 31,
1960, . . . in monthly installments of $175.00. A
copy of said lease is hereto attached marked Exhibit
`A' and made a part hereof.

"That plaintiff did, pursuant to the terms of said
lease, go into tenancy of the premises . . . on or
about the 1st day of January, 1959. That on or about
the 17th day of January, 1959, the premises . . .
were damaged so as to become untenantable. That
plaintiff did not receive any written notice from the
defendant regarding the restoration of the premises,
however, at various times and on various occasions
the defendant made oral representations to the
plaintiff that the premises would be restored for the
plaintiff's further tenancy. . . .

"That plaintiff has performed all of the terms and
conditions which the lease required of him and is
still ready, . . . to continue to so perform, but the
defendant replied to plaintiff's request with an oral
demand for an increase of $200.00 per month,
otherwise, defendant refused to allow the plaintiff
to continue under the lease. This oral demand was
made . . . sometime during the . . . early part of
October, 1959, . . .