56 A.2d 52 | D.C. | 1947
This was a suit to recover possession of rented premises upon the ground that defendant had violated a covenant of the landlord and tenant agreement against subletting and another covenant that the property would be used only for dwelling purposes. Judgment was entered upon a directed verdict for plaintiff for possession and defendant has appealed.
The premises were rented originally in 1939 under a written landlord and tenant agreement between defendant and Edward D. Coleman who was not the owner of the property.
Plaintiff Torre did not appear at the trial and there was testimony that the original lessor, Mr. Coleman, had died several years previously. Plaintiff’s sister testified that she was office manager for her brother and had been employed in his office from some time previous to 1941 to date. She identified the agreement upon which the
It was undisputed that the use of the premises as a rooming house and for a restaurant had been waived but there was no evidence of waiver of the violation of the lease by the subletting of the basement room for a shoe shine parlor. It made no difference that the room had not yet been used for the shoe shine business. This subletting being admitted and there having been no waiver, the action of the trial court in directing a verdict for plaintiff was fully justified,
Defendant urges that plaintiff did not have the right to bring the action and bases his position upon the grounds, first, that there was no proof of the signature of Mr. Coleman as assignor on the assignment and that the blank for the name of the assignee had never been filled in. Under other circumstances the position of defendant probably would be well taken. But here the monthly rental agreement between Mr. Coleman and defendant was identified by plaintiff’s sister without objection, and defendant himself admitted signing such agreement. It was also undisputed that the agreement had been transferred by Mr. Coleman to plaintiff and that after its transfer defendant had regularly paid rent to plaintiff. Furthermore, and more important, defendant filed an answer to the suit and in such answer stated that he “admits that he holds the premises 611 M Street N. W. as a monthly tenant of plaintiff.”
Such admission, we conclude, is fatal to defendant’s position. He not only recognized plaintiff as his landlord but he also admitted his position as a monthly tenant and such position under the proof could only have arisen by reason of the landlord and tenant agreement in which he covenanted not to sublet the premises.
No error appearing, the judgment is
Affirmed.
The owner was produced as a witness for not allowed to testify. laintiff, but, upon objection of defendant, was
Merritt v. Kay, 54 App.D.C. 152, 295 F. 973.
Any verbal hiring by the month would have constituted defendant a tenant at sufferance. Code 1940, § 45—820.
Balloch v. Hooper, 146 U.S. 383, 13 S.Ct. 128, 38 L.Ed. 1008, affirming 6 Mackey 421, 17 D.C. 421.