118 Va. 511 | Va. | 1916
delivered the opinion of the court.
This is an attachment proceeding brought by the plaintiff in error to recover of the defendant in error rent to become due under a certain contract of lease.
The evidence shows that Mrs. G. T. Orange entered into a
“Further, Mr. Buchanan promised electric lights for the store, which have never been furnished me, and the gas light in the place has been a means of great loss to me, because it is insufficient for lighting the premises, the place being quite large.
“The fall season is coming on and it is necessary that the furnace heat be installed immediately and the proper lights, as called for under the contract, be furnished, otherwise I will have to vacate the premises, but in no case waive my rights to damages because of the loss I have suffered as a result of your failure to perform the covenants of your lease.”
The -question to be determined is whether the facts stated constitute a constructive eviction of the defendant in error from the leased premises, thereby relieving her from the payment of the rent not due.
It is to be observed in the outset that the subject of the lease involved in this case was not land, out of which the rigid principles of the common law governing the relation of landlord and tenant grew, owing to the sanctity with which land was invested in the eyes of the common law; but the subject of the lease was only a floor in the building, the landlord controlling his own land and all the rest of the building.
In Minor on Beal Property, after alluding to the rigid common law principle that, although the building on the leased land may be destroyed, yet the tenant continued to be liable for rent, adds, “that where one leases a room or apartments in a building, which is destroyed by fire,- he is at common law relieved from his obligation to pay rent, because there is no land leased strictly speaking, but only the building out of which the rent issues, the destruction of that bringing the case within the common law exception.” Minor on Beal Property, vol. 1, p. 495. '
In Taylor on Landlord and Tenant (9th Ed.), sec. 309A, it
We are of opinion that the great weight of modern authority sustains the view that the facts of the instant case constitute a constructive eviction and entitle the defendant to a release from the payment of rent not due when the premises are vacated.
In Bass v. Rollins, 63 Minn. 226, 65 N. W. 348, an agreement was made in the lease of an apartment that sufficient heat should be furnished, and the failure to furnish sufficient heat was held to justify the tenant in vacating the premises. In Le Prichard v. Thurber, 84 N. J. L. 193, 86 Atl. 953, a tenant was held to be justified in abandoning an apartment because of the failure of the landlord to comply with an agreement concerning the steam heat. The action was only for damages after the tenant had left, and it seems to have been taken as a matter of course that the tenant was warranted in abandoning the premises. In the case of Johnson v. Tucker, 136 Wis. 505, 117 N. W. 1002, 128 Am. St. Rep. 1097, which was a case of abandoning an apartment because of failure to comply with an agreement as to heat, it was held that the question of eviction or of justifiable abandonment, was properly left to the jury.
In Wade v. Herndl, 127 Wis. 544, 107 N. W. 4, 7 Ann. Cas. 591, 5 L. R. A. (N. S.) 855, the court, in affirming the judgment said: “The law governing the rights and liabilities of landlord and tenant in cases where the tenant asserts eviction from the premises, is that actual expulsion is not necessary, but that any act of the landlord or of anyone who acts under his authority . . . which so disturbs the tenant’s enjoy
In Edmison v. Lowry, 3 S. D. 77, 52 N. W. 583, 17 L. R. A. 275, 44 Am. St. Rep. 774, the court instructed the jury as follows: “As to the matter of eviction it is not necessary there should be any act of a permanent character, but any act which has the effect of depriving a tenant of the free enjoyment of the premises or any part thereof, or any appurtenances pertaining to these premises, must be treated as an eviction.” On appeal the Supreme Oourt of South Dakota held that the jury were correctly charged.
In the case of Wade v. Herndl, supra, and Central Business College Co. v. Rutherford, 47 Colo. 277, 107 Pac. 279, 27 L. R. A. (N. S.) 637, 19 Ann. Cas. 689, elaborate notes are appended in which the subject is discussed and a great many authorities cited in support of the view we have taken, touching the law applicable to the instant case. We do not, however, deem it necessary to prolong this opinion with further citations on the question of constructive eviction, except to say that the plaintiff in error has called our attention to the case of Tunis v. Grandy, &c., 22 Gratt. (63 Va.) 110, which is not, in our opinion, in conflict with the law as established by the authorities we have cited. In that case the facts were wholly different from the present ease. It did not involve, as in the case-before us, the question of constructive eviction, where the whole premises were abandoned because of some act or failure to act on the part of the landlord, which rendered the full enjoyment of the premises impossible.
The plaintiff in error contends that in order for the acts or defaults of the landlord to amount to constructive eviction, they must be of a grave and permanent character, and they must clearly indicate an intention on the part of the landlord that the tenant shall no longer continue to hold the premises or
“It is certainly difficult for the modern jurist to apply the stringent common law principles concerning eviction as between landlord and tenant, to the conditions of the present day. By eviction at common law originally was manifestly meant an actual dispossession of the tenant by the landlord, in order that the landlord might take possession of the premises, and with an intention on his part so to do, or the eviction may occur under the paramount title of a stranger. Whether the eviction be called actual or constructive, at commonTaw, there must be in the mind of the landlord the intention of driving the tenant off of the land leased, so that he may take possession of it. To apply this idea to the modern custom of leasing a floor in a building, for business or living purposes, under a contract with varying stipulations as to the duties of the landlord towards the tenant, incompatible with the common law lease, is a task impossible of exact accomplishment. It is manifest in the cases referred to above by me and in the cases cited by counsel at bar, that while the courts seem to hold to the technical doctrine of intention, yet the facts of no case in which the tenant was held to be justifiable, evinced an intention on the part of the landlord to put the tenant out. On the contrary, the tenant abandoned for reasons claimed by him to justify abandonment, and the landlord was trying to-hold him. It seems to me that the law would be stultifying itself to lay down as a maxim in these cases that there can be no abandonment unless it be shown that' the landlord intended to dispossess the tenant. I am satisfied that under the more modern doctrine in cases of this character, the intention of the landlord should be held to be a matter of law or of fact, to be inferred from the acts, so that if the acts of the landlord as a matter of fact resulted in dispossessing the tenant by giving him justi*518 fiable cause to vacate the premises, then the law imputes the intention to the landlord on the general principle that every man must be held to intend the proximate consequences of his act.”
The more important of the objections taken by the plaintiff in error to the action of the court in giving and refusing instructions have been dealt with, and disposed of, in what has been already said. We have, however, considered carefully all of the instructions and are satisfied that those given by the court fully and fairly submitted the case to the jury, without the slightest prejudice to the rights of the plaintiff in error.
In conclusion, we are of opinion that the judgment complained of is without error and must, therefore, be affirmed.
Affirmed.