30 Neb. 777 | Neb. | 1890
This is an action for damages which the plaintiff claims to have sustained by reason of the defendant unlawfully terminating a certain lease entered into between the plaintiff and defendant, whereby the plaintiff lost the benefit of the possession of the leased premises. A trial was had to a jury, with verdict and judgment for the plaintiff for $510. The defendant’s motion for a new trial was overruled, and he brings the case here for review by proceedings in error.
On the 29th day of November, 1886, the defendant, Martin Cannon, executed and delivered to Mathew C. Wilbur, the plaintiff below, a written lease of a barn and other improvements, situated on lot 1, in block 205|-, in the city of Omaha, for a term of four years from December 1,1886, in consideration of an annual rental of $720, payable semi-annually in advance. The plaintiff paid the defendant about December 1,1886, $360 rent in advance, and went into possession of the premises under the lease, and continued to occupy the same until July 30, 1887. Wilbur on this date, with the consent of Cannon, subleased the premises for the remainder of the lerm to one J. E. Blackman for $1,200 per annum, to be paid, $600 August 1, 1887, and $600 every six months thereafter, until the termination of the lease. It was at the time agreed between Blackman, Cannon, and Wilbur, that Blackman should pay to Cannon the $60 per month rent stipulated
The plaintiff introduced evidence tending to show that defendant Cannon fraudulently procured Blackman to assign his lease to McShane, in order that McShane might take possession of the property, and then surrendered the same to the defendant; that McShane, in pursuance of that arrangement, took possession and surrendered the same to Cannon, and-immediately re-entered as the direct tenant of the defendant.
The defendant strenuously maintains that he entered into no fraudulent arrangement to obtain possession of the leased premises. The circumstances disclosed by the testimony were ample to warrant the jury in finding that the defendant obtained the possession of the premises through undue means. Cannon took McShane to Blackman to purchase his lease. The lease is assigned to McShane, who enters into possession and remains in the occupancy thereof
As to the right of the defendant to terminate the lease without giving notice to plaintiff, the court instructed the jury that, “the right reserved by.the terms of the lease to the lessor, Cannon, was, in ease of a failure to pay rent, or performance of other conditions of the lease by Wilbur, at his (Cannon’s) option to declare the term at an end, and to retake immediate possession of the premises. But in order to avail himself of this option it was the duty of Cannon to give Wilbur reasonable notice that he would terminate the lease unless the rent was paid or other conditions complied with, and if he retook possession without such notice — without Wilbur’s consent, he would be liable for such damages as might be sustained by Wilbur by reason of such wrongful act.”
It is urged that as the plaintiff had subleased the entire premises for the balance of his term, he was not entitled to any notice of forfeiture. Did the subleasing of the prop
Exceptions were taken to the third and fourth instructions given. They are as follows:
“3. If you believe from the evidence that the defendant Cannon connived with Blackman and McShane or Brown, or with either of them, to obtain possession of the premises described, without the knowledge of Wilbur, and
“4. If you find for the plaintiff, the rate of damages would be the difference between the rental value of the premises and the amount which, under the terms, he was obligated to pay as rent for the balance of the term, after he was so deprived of the possession.”
. It is claimed that these instructions were erroneous for two reasons: First, that, under the pleadings and evidence, the plaintiff had no right of action; second, that no evidence was introduced tending to show the rental value of the property.
The defendant unlawfully obtained possession of the premises and canceled the plaintiff’s lease, thereby damaging the plaintiff to the extent that the rental value exceeded the amount of. rent that the plaintiff promised to pay. It is now firmly settled by the decisions that, where a landlord unlawfully takes possession of the leased premises and withholds the same from his tenant, a cause of action arises in favor of the tenant, and the measure of his damages, ordinarily, is the rental value of the unexpired term less the amount of rent reserved by the lease. (Mack v. Patchen, 42 N., Y., 167.) And it makes no difference that such possession was obtained by collusion and fraud.
The undisputed testimony shows that Blackman leased the property at a monthly rental of $100, and that subsequently Proctor rented for a year at $75 per month. No other proof was offered as to the rental value of the property. It is urged that this was not competent evidence. It was certainly competent to prove the price the property
Affirmed.