460 A.2d 1311 | Conn. Super. Ct. | 1983
The plaintiff landlord brought this action for unpaid rent and for attorney's fees. The defendant tenant filed several special defenses, essentially *684 alleging uninhabitability, and a counterclaim for damages resulting from the plaintiff's breach of its covenant to repair. The trial court found for the plaintiff on the issue of unpaid rent but rejected its claim for attorney's fees. The defendant was awarded $20 on his counterclaim. Both parties have appealed from the judgment.
Three issues are raised by this appeal: (1) whether the facts support the court's conclusion of a month to month tenancy; (2) whether the plaintiff can recover, in part, on an unalleged cause of action; and (3) whether the plaintiff can recover attorney's fees.
The facts are not in serious dispute. The parties' one year written lease for apartment 26-A, Bushnell Tower, Hartford, terminated on May 31, 1979. The defendant thereafter occupied the apartment from June 1, 1979, to December 15, 1980, and paid a monthly apartment rent of $570 from June 1, 1979, to February 28, 1980, plus a monthly parking charge of $22 from June 1, 1979, to January 31, 1980. Thereafter, the defendant ceased to pay rent and parking charges. A notice to quit was served on August 14, 1980. The defendant relinquished possession on December 15, 1980. The trial court awarded the plaintiff $5942 representing ten months back rent and eleven months parking charges. The claim for attorney's fees was denied. The defendant, in addition to a partial recovery on his counterclaim, was allowed a security deposit setoff of $470.
The uncontroverted testimony was that the defendant held over with the plaintiff's acquiescence. Such conduct raises an oral contract of leasing by implication. Welk v. Bidwell,
The defendant's contention that no monthly tenancy existed because there was "no meeting of the minds" disregards the contractual relationship legislatively cast by General Statutes
The defendant's reliance on Welk v. Bidwell, supra, is misplaced and does not warrant a contrary result. In Welk, the tenant rejected a ten-fold rental increase. Under those circumstances, the court could reasonably conclude that the tenant "at no time either expressly or impliedly agreed to pay" the increased rent. Id., 605. Accordingly, no meeting of the minds and no month to month tenancy existed in that case. *686
The notice to quit constituted an unequivocal offer to terminate the monthly rental. Upon its service, the tenancy at will was converted to a tenancy at sufferance. The lease is neither voided nor rescinded until the lessor performs an unequivocal act in the exercise of his option. The issuance of the notice to quit is the undeniable exercise of this option. See Chapel-High Corporation v. Cavallaro,
The plaintiff's reliance on General Statutes
"The allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties . . . . `It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. Nash Engineering Co. v. Norwalk,
The prayer for relief in the original complaint sought to recover attorney's fees. In response to the defendant's motions to strike the claim for attorney's fees, the plaintiff submitted an amended complaint deleting this item for its prayer for relief. Although the issue was not addressed in the memorandum of decision, the record clearly shows the exclusion was based on the plaintiff's withdrawal of attorney's fees in its first amended complaint. *688
The exclusion was proper for two reasons: (1) novation, and (2) failure to allege this claim in the complaint. "Novation may be broadly defined as a substitution of a new contract or obligation for an old one which is thereby extinguished." 15 Williston, Contracts (3d Ed. Jaeger) 1865. A recognized test for whether a later agreement between the same parties to an earlier contract constitutes a substitute contract looks to the terms of the second contract. If it contains "`terms inconsistent with the former contract, so that the two cannot stand together' it exhibits characteristics . . . indicating a substitute contract." Riverside Coal Co. v. American Coal Co.,
The complaint contained no allegations regarding attorney's fees. In a similar situation, we held that "[n]o judgment could be rendered, therefore, awarding counsel fees . . . since the matter was wholly outside the issues raised by the pertinent pleadings." Santini v. Kocher,
Where a lease provides for costs and attorney's fees in connection with the collection of holdover rentals, we would not hesitate to assess such expenditures. Heyde v. State Securities,
The plaintiff may recover rent in the sum of $570 per month for the period from March 1, 1980, to August 15, 1980, and $22 per month for parking charges from February 1, 1980, to August 15, 1980. The parties do *689 not dispute the trial court's award of $90 to the plaintiff for an unpaid rental balance and $490 to the defendant on his counterclaim and security deposit set off.
There is error in part. The judgment is set aside and the case is remanded with direction to render judgment for the plaintiff on the complaint in the sum of $3368 and for the defendant on the counterclaim in the sum of $490.
In this opinion DALY and COVELLO, Js., concurred.