211 F. 812 | 1st Cir. | 1913
Lead Opinion
This suit was brought in March, 1899, in the Circuit Court. As originally brought, the plaintiffs in it were the Grace & Hyde Company and the Paul Boyton Company for the Grace & Hyde Company’s use and benefit.' A judgment for the plaintiffs entered February 3, 1900, was reversed on the defendant’s exceptions by this court December 3, 1901, 112 Fed. 279, 50 C. C. A. 239. After the mandate, the declaration was amended by making the Paul Boy-ton Company sole plaintiff, and • also by substituting a single count for the two counts contained in the declaration upon which the case first went to trial. A demurrer to the amended declaration was overruled in July, 1906.
At the second trial, in November, 1907, there was again a verdict for the plaintiff. Judgment was entered on this verdict in March, 1912, and the case is ■ again here on the defendant company’s exceptions. The defendant, here plaintiff in error, will be hereinafter referred to as the “defendant,” and the Paul Boyton Company, here defendant in error, as the “plaintiff.”
The objection raised by demurrer was that the declaration did not allege the plaintiff to have been in possession of the premises - at the time of the alleged entry and trespass. The court held in overruling the demurrer, as appears from the opinion • dated July 17, 1906, that although ownership of the premises at the time in any one had not been directly stated, yet it sufficiently appeared from the facts > stated, as against the defendant, that the close was the plaintiff’s. The court also held that an allegation of possession in the plaintiff > was unnecessary if there was .a sufficient allegation of its ownership, though possession would have to be proved. The court > regarded the declaration as too loosely drawn and as leaving too much to inference, and suggested that, if it was to be further amended'by being made more definite, the amendment should be then-made. None has been made, however, nor has the overruling of the demurrer been assigned as error. The second trial was upon the amended declaration as it stood, notwithstanding the court's suggestions.
The Massachusetts system of pleading includes all actions of trespass and trespass oh the case in the category of “actions of-tort.” If there is a remedy for the wrongs complained of in the declaration otherwise than by an action-of contract, the remedy-must be according to some one of the forms of action just referred to, and to whichever of them it may correspond it will be an action of-tort under Massachusetts laws.
“On or about the twenty-fourth day of May, 1898, and while there was an unexpired balance of term of two years and a half, the defendant wrongfully entered into and upon said premises and expelled the plaintiff from occupation thereof, and itself took possession of said premises and all structures which had been erected thereon by the plaintiff, and has ever since declined and refused to permit the plaintiff to come upon said premises or have the use or enjoyment thereof, or there conduct its profitable business in the management and operation of said amusement and exhibition.”
We cannot agree with the defendant that such a declaration must be regarded as- based wholly on the injury to the plaintiff’s possession involved in a direct, momentary, unlawful entry upon the premises. Not merely the defendant’s unlawful entry, but also its assumption and maintenance of possession, its eviction of the plaintiff thereby, and the subsequent continued exclusion of the plaintiff are complained of. For such an unlawful expulsion of the plaintiff from possession as tenant, followed by continued exclusion from such possession and resulting in consequential damage to the plaintiff, we see no reason to believe that an action on the case would not be a proper remedy; notwithstanding that on the same facts trespass q. c. f. might have been brought, or an action of contract upon the covenants in the lease. Instances are not wanting wherein such actions in tort for consequential damages, by tenant against landlord, and based upon unlawful eviction or exclusion during the term of the lease, 'have been sustained, without regard to the rules applying when the injury to be redressed is a mere momentary invasion of the plaintiff’s possession and the action therefore strictly one of trespass q. c. f. See Ashley v. Warner, 11 Gray (Mass.) 43; Snow v. Pulitzer, 142 N. Y. 263, 36 N. E. 1059; Gildersleeve v. Overstoltz, 90 Mo. App. 518; Chapman v. Kirby, 49 Ill. 211; Allison v. Chandler, 11 Mich. 542.
A similar view of one count in the original declaration was suggested by this court upon the former writ of error in this case. Boston Elevated, etc., Co. v. Grace & Hyde Co., 112 Fed. 279, 285, 50 C. C. A. 239. The count there-referred to was, in all respects material for the present purpose, substantially like the present amended declaration. The defendant objects to this view that the declaration does not allege any injury to the reversion or permanent damage to the property, but this is not a valid objection unless it be true that the facts alleged entitle the plaintiff to recover for a direct, momentary, unlawful entry only, and such damages only as it sustained by a momentary disturbance of its occupation. We find no controlling authority and no controlling reason in principle which obliges us to hold that unless it sues on the covenants in its lease, or first resorts to a real action for recovery of its possession, it is debarred from recovering, indemnity for its loss of that right to use and occupy the premises during the remainder of the term, upon which it was entitled to rely. We find no conclusive reason why it may not treat the landlord’s entry and subsequent occupation as having terminated the lease, and, if the termination was wrongful, obtain indemnity in an action of tort. We therefore overrule those exceptions which complain of refusals to instruct that the declaration stated no cause of action in case, that there could be no recovery in tort without proof of injury to the reversion, and that there was no evidence of such injury. As will appear, other ex
The defendant proceeded,' .after its demurrer was overruled; to answer the amended declaration on August 10, 1906. This answer contained, besides p general denial, an express denial that the plaintiff was in possession on May 24, 1898. But it set-up also, in its fifth paragraph, an affirmative defense, as follows:
That before the lease mentioned in the iJeclaration the defendant was owner, seised in fee, and in possession of the premises.
That being so seised it made a lease of them to the plaintiff as tenant thereof.
That this lease was upon condition that the plaintiff should maintain during the term certain structures and an exhibition on the premises, continuous while the weather in each year permitted.
That the lease further provided that upon failure to maintain such continuous exhibition the lessor might enter while neglect to maintain it continued and repossess the premises as of its own estate.
That during the. term the plaintiff failed to maintain such continuous exhibition.
That thereupon the defendant had the right while such default continued to enter immediately and so repossess itself of the premises without being guilty of trespass, and that such an entry would determine the plaintiff’s lease.
And in the next (sixth) paragraph of the answer it was further set up that on May 24, 1898, the plaintiff and the person then having lawful possession of the premises requested and invited the defendant so to enter.
To a supplemental answer later filed, setting up another affirmative defense, and the plaintiff’s replication thereto, no special reference is necessary for the present purpose. Upon the issues thus'presented the case went to trial.
At the trial, as the present bill of exceptions sets forth, certain facts were admitted by the parties. It was admitted, among other things, that the defendant’s entry upon the premises, a justification whereof was set up as above in its answer, was made on May 24, 1898, under circumstances appearing, as the exceptions state, “in detail below.” Further on in the exceptions, uncontradicted evidence on the defendant’s behalf is found, to the effect that its treasurer made this entry, under instructions from'its president, and that in making it he declared that he “took possession under forfeiture of the leasealso that, having thus entered, the defendant immediately sent the written notice to the plaintiff dated May 24,-1898, which is quoted in full in the former opinion of this court. 112 Fed. 280, 50 C. C. A. 239. This notice was
At the trial, notwithstanding its entry and notice thus admitted, the defendant contended that the plaintiff’s possession of the premises^ at the time of the entry had not been proved, or was, at least, a question for the jury. The court ruled, as matter of law, that the plaintiff was in possession at the time, and that by its entry the defendant terminated the plaintiff’s lease. The defendant complains that this was error. It insists: (1) That there was no evidence that the plaintiff ever took or had possession under the lease; (2) that, on the contrary, the evidence showed the Grace & Hyde Company to have taken possession of the premises before February 1, 1896, when the term under the lease began, by virtue of its agreement with the plaintiff of January 8, 1896, showed the Grace & Hyde Company to have held continuous, exclusive possession thereafter until May 19, 1898, five days before the defendant’s entry, and further showed one Wallace E. Hyde to have been in exclusive possession of them during this interval of five days and at the time of the entry.
These contentions are based upon further facts admitted, or upon evidence given at the trial, regarding transactions under the agreement of January 8, 1896, between the plaintiff and the Grace & Hyde Company, regarding controversies and litigation, between them arising from those dealings, and regarding various steps taken therein by one or the other of them. The further admitted facts significant in this connect tion may be thus described:
(1) Provisions in the above agreement of January 8, 1896 (article 3) that the Grace & Hyde Company should “have the right to obtain and hold exclusive possession and control of * * * said leased premises,” and of a structure called-a “chute” to be built thereon by it, until the whole amount owing to it for building the chute, etc., as agreed should be fully paid.
(2) Sworn allegations by the plaintiff in a bill in equity, brought January 4, 1898, by it against the Grace & Hyde Company in an Illinois court, that said company had been fully paid for building the chute and ought to deliver it to the plaintiff; yet had not done so, but had delivered “possession of the Boston Chute” to persons unknown; also that said premises were neither in its possession nor in the possession of the Grace & Hyde Company, but had been turned over to persons unknown by the latter company. ■
(3) Sworn allegations by the plaintiff in an amended bill, filed in the same case May 5, 1898, that the Grace & Hyde Company still refused to “surrender possession of said chutes” to it;' and, in a supplemental bill, filed on the same day, that the Grace & Hyde Company
(4) An order by the Illinois court May 9, 1898, not appearing to have been vacated or modified, appointing a receiver for two “chute properties” described in the bill, one of them the chute here in question, and directing that possession of them be surrendered to said receiver by the Grace & Hyde Company, Wallace E. Hyde, William Grace or their representatives.
(5) Allegations by the plaintiff in a bill in equity brought by it against the Grace & Hyde Company and others, in a Massachusetts court, May 28, 1898, four days after the defendant’s entry, that the Grace & Hyde Company had leased the “Boston Chute and grounds” to persons unknown, and neglected and refused to give the plaintiff possession of said chute; that it had subsequently refused to deliver possession thereof to the Illinois receiver, but had put Hyde in possession thereof as its agent; and that Hyde, as such agent, had refused to deliver possession thereof; that the “Boston Chute” had been attached in a suit brought by Hyde against the plaintiff by a deputy sheriff, who held possession thereof and refused to deliver it to the receiver ; also that the plaintiff and the receiver were excluded from said chute by the defendants named in the bill.
Of the evidence given at the trial and relied upon by the defendant in support of its above contentions, the significant features may be stated as follows:
Calkins, secretary and treasurer of the plaintiff company during. May, 1898, and the person appointed as above by the Illinois court re- ■ ceiver of its property, called by the defendant, testified that the plaintiff company was not in actual physical possession of the premises during that month; that attempts made by him to get such possession during the month did not succeed; that at one such attempt, made by him on May 13, 1898, in company with N. P. Dodge, acting as counsel for the plaintiff, Wallace E. Hyde was found to be in possession of the premises and ordered them off; that Hyde was not then in the plaintiff’s employ and did not represent it; that Hyde purported at the time to hold such possession, first, on behalf of the Grace & Hyde Company, then on his own behalf, claiming to have purchased the Grace & Hyde Company’s interest.
N. P. Dodge, counsel for the plaintiff company in May, 1898, also called by the defendant, confirmed Calkins’ testimony as to what happened at the premises May 13, 1898, and stated further that he had never succeeded in obtaining actual possession of the premises for the plaintiff company or for its receiver.
Silsby, a deputy sheriff, called by the. defendant, testified that under a state court writ dated May 18, 1898, in an action of contract by Wallace E. Hyde against the plaintiff, he attached the chutes and all the
There was testimony by William Grace, president of the Grace & Hyde Company, called by the plaintiff, that his company had, at the end of 1897, been repaid all that was due it for constructing the chutes under the agreement of January 8, 1896; that Wallace E. Hyde was its local manager in Boston and represented it in the operation of the chutes; that it directed Hyde by telegram, on May 19, 1898, to turn over the property known as the Boston Chute to the representative of the receiver appointed in Illinois; that after that date it had no representative in Boston and carried on no business at the Boston Chute.
It appeared that Wallace E. Hyde alleged under oath, in a bill of equity filed in the superior court by him against the plaintiff, on May 23, 1898, that he was in possession of the premises, claiming to hold them under the terms of the defendant’s lease to the plaintiff and by reason of his ownership in the chute and its appurtenances; and also alleged himself to be equitable owner of them, maintaining possession against the Illinois receiver, except so far as the sheriff held possession under the above writ of attachment.
We are unable to find in the facts or evidence thus relied upon sufficient reason for holding that the ruling now under consideration was wrong.
It stood admitted at the trial, as it did not upon the pleadings, that the defendant had leased the premises to the plaintiff, and had done this by the lease which the declaration set forth—a lease providing, among other things, that there should be no assignment or subletting without the defendant’s consent.
Whatever the effect of the plaintiff’s agreement with the Grace & Hyde Company, as between'the parties to it, it is clear, as this court has once held (112 Fed. 285, 286, 50 C. C. A. 239), that it neither created nor contemplated a subtenancy, and negatived the conveyance by the plaintiff of any immediate interest in the leasehold; so that whatever the Grace & Hyde Company did under it on the premises must be regarded, as against strangers to that agreement, as done for the plaintiff, and its occupation or “possession” of the premises as, in legal effect, that of a manager or agent for the plaintiff. Nor is this any the less true because the terms of the agreement were that the Grace & Hyde Company should have “exclusive” possession. Whatever the terms used in the agreement to describe it, the right which that company took by agreement could have been nothing'more than a right to require the plaintiff to keep a promise that it would not interfere nor permit interference with the company’s exclusive control and management of the chutes, while the company’s occupation under the plaintiff continued. Such a right presupposed possession in the plaintiff as tenant. We find nothing, therefore, in any of the allegations or admissions made or testimony given for the purposes of the controversy between the parties •to the agreement regarding their rights under it, which would have justified a finding that' the plaintiff was out of possession, in the sense required for the purposes of this case.
No change whatever in this state of affairs from the time of making the lease on January 1, 1896, to the defendant’s entry on May 24, 1898, could be inferred from the evidence. The defendant’s supplementary brief expressly disclaims the contention that the lease had ever been abandoned.
“Where a party gives a reason for liis conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration.” Railway Co. v. McCarthy, 96 U. S. 258, 267 (24 L. Ed. 693).
3. Whether or not there had been a breach of the conditions referred to, justifying the defendant’s entry, was submitted to the jury. The defendant complains of refusals to direct a verdict for it upon this issue, or to rule either that Hyde was authorized to admit persons to the premises, or that; if he was in possession and control of them as the plaintiff’s agent at the time of the entry, the defendant could not be liable for an entry made at his invitation and request. We cannot find anything in the evidence which would have warranted a finding either that the Grace Hyde Company was ever capable of authorizing Hyde to surrender the plaintiff’s possession as tenant under the lease to the landlord, or that Hyde had any authority regarding, the premises beyond that which the Grace & Hyde Company could ¿ive him, or that the plaintiff ever authorized Hyde either expressly or by implication, so to surrender its possession. If none of these things could have been found, it could make no difference whether or not he had authority to "admit persons” upon the premises, nor could any invitation by him to
4. The measure of damages, as the court ruled at the trial, was to be the value to the plaintiff of the unexpired term of the lease, which, on May 24, 1898, had until February 1, 1901, to run. Of this instruction, we think, for the reasons stated, that the defendant has no right to complain. It is clear from what has been said that we consider the court to have been right in refusing to rule that nominal damages only could be recovered.
Evidence was admitted, against objection, to show the value of the structure on the property, the amount expended in permanent improvements during 1897, and the desirability of the situation for amusement purposes. All these matters we think the jury were rightly allowed to take into account, in determining the fair value of the leasehold interest in question, as possible elements of1 that value.
We find no error, therefore, in the instructions given upon the question of damages.
5. There are two assignments of error which go to the plaintiff’s capacity to maintain the suit.
(1) The last piece of evidence offered by the defendant at the trial was a certificate by the Illinois Secretary of State that a paper annexed was a true copy of an order made by him July 1, 1903, in pursuance of'an Illinois statute recited, purporting to declare the plaintiff’s charter canceled for its failure to make an annual report due-in February,. 1903, and pay the required fee of $1 thereon. The court excluded this, on the ground that it could not affect the maintenance or prosecution of the suit, and for other reasons not specified. In view of the Illinois statute referred to, and of People v. Rose, 207 Ill. 352, 69 N. E. 762, we cannot agree with the defendant that the certificate was of itself proof that the plaintiff had no corporate existence. The defendant offered nothing beyond it; and we think also, although the pleadings raised the issue, that the court might well have refused, in its discretion, to permit the question to be raised before the jury in the manner attempted, for the first time, when the end of! so long a trial had been so nearly reached.
We find no other assignments of error requiring to be specifically dealt with. All are in effect disposed of by the conclusions stated above.
The judgment of the District Court is affirmed, with interest, and the costs of the appeal.
Rehearing
On Petition for Rehearing.
The evidence at the trial failed, in our opinion, to show that the plaintiff had ever lost its possession as tenant under the leases. The justification attempted by the defendant of its entry to terminate the lease was based upon an alleged neglect and omission on the plaintiff’s part to keep its agreement in the lease that “its exhibition” should be “continuous while the weather of each year permits.” The defendant relied for that purpose upon evidence that no exhibition was maintained during part of 1898 while the weather did permit, and upon a claim that it was entitled to rely upon statements to that effect of Wallace E. Hyde, as “manager”’ of the exhibition. No claim appears to have been made at the trial that the entry was justifiable because, for want of possession in the plaintiff, no exhibition maintained, whatever the weather, could have been its exhibition.
But the defendant is in error in assuming that what is said in our opinion as to the inconsistency of its contentions was the controlling reason for overruling its exception to the ruling óf the trial judge upon the question of possession. Even if we should accept the contention that there is no such inconsistency, this would not affect our opinion that the plaintiff entered into possession under the lease, and that there could be inferred from the evidence offered by the defendant no substantial change of affairs in this respect from the time of making the lease to the defendant’s entry on May 24, 1898.
The defendant cannot now say that the excluded certificate from the Illinois Secretary of State might have been followed and supplemented by further evidence tending to disprove the plaintiff’s corporate existence, in view of the fact that the -record shows no offer of any such evidence at the time, and no suggestion of a desire to offer any.
The petition for rehearing is therefore denied.