141 Conn. 407 | Conn. | 1954
The plaintiff corporation instituted this action to recover the reasonable value of the use and occupancy of a certain store owned by it. The defendants are Cavallaro and the administratrix on the estate of George C. Eogers. The court found the issues for the plaintiff against both defendants and an appeal has been taken to this court.
The finding narrates the following facts: During 1949 the plaintiff was the owner of realty in New Haven, consisting, in part, of store premises known as 1086 Chapel Street. On May 26 of that year, Nicholas Antonopoules and Bessie Morris were in possession of the store as tenants of the plaintiff and conducted therein a restaurant business. George C. Eogers, now deceased, was then sheriff of New Haven County, and Cavallaro, whom we shall call the defendant, was his duly appointed deputy. On the date mentioned, the defendant, acting under authority of a duly issued writ, entered the restaurant for the purpose of attaching the personal property of the tenants and making service of the writ upon them. At that time, Antonopoules told him that he could no longer operate the restaurant. The tenants then left the premises and have never re
The plaintiff filed with the trustee a general claim for rent of the store from May 1, 1949, to May 26, 1949, and a preferred claim for the use of the store from July 15, 1949, to September 10, 1949. Each claim was allowed and the plaintiff shared in the assets of the estate.
Shortly after May 26, 1949, the plaintiff learned that the defendant had closed the store, but it was not until August 1, 1949, that it notified the defendant by letter of its intention to hold him liable for the use and occupancy of the store from May 26, 1949, to July 15, 1949. The reasonable value of the use and occupancy between those dates is $416.66, but the defendant has refused to pay it.
Subsequent to September 10, 1949, Rogers died and an administratrix on his estate was appointed and qualified. On March 31, 1951, the plaintiff presented to the administratrix a claim in writing for
The additions to and deletions from the finding sought by the defendant cannot be entertained in the absence of an appendix setting forth the evidence on which he relies. Practice Book § 447. Fortunately for him, the corrections which he seeks are not necessary to strengthen his legal position.
The court utilized two theories to spell out liability for the defendant. One was predicated upon a trespass and the other upon a contractual relationship. Neither theory is sound. Under the first, the court held that the defendant should respond in damages because of a trespass committed to the plaintiff’s realty. The statutes authorize the issuance of a writ of attachment upon the institution of an action. General Statutes §§ 7811, 8022 (as amended, Cum. Sup. 1953, § 2396c), 8023. This power to attach property on mesne process is an extraordinary one granted by the General Assembly in derogation of common right and common law. Munger v. Doolan, 75 Conn. 656, 659, 55 A. 169. The failure of an officer, such as a deputy sheriff, to pay strict observance to the statutory requirements will render the attachment invalid. State v. Hartley, 75 Conn. 104, 107, 52 A. 615. Since the defendant, in violation of a provision of § 8023, failed to describe the attached personalty, the attachment was illegal, and the parties so concede. This made the defendant a trespasser ab initio. Anderson v. Cowles, 72 Conn. 335, 338, 44 A. 477. It by no means follows, however, that the trespass was against the plaintiff’s real property.
Trespass is founded on a violation of the right of possession. Merwin v. Camp, 3 Conn. 35, 40. An injury to possession is the gist of the action, and if
The question presents itself whether the plaintiff had the right of possession of the store premises at any time between May 26, 1949, when the attachment was made, and the following July 15, when the temporary receiver took charge. While it is true that the court concluded that “[o]n May 26, 1949, Antonopoules and Morris . . . surrendered their tenancy [and] the plaintiff took possession of the store premises,” the subordinate facts are totally inadequate to support that conclusion. The sole facts which the court found respecting the matter under discussion were that Antonopoules informed the defendant of his intention to forego further operation of the restaurant and that the tenants then discontinued the business, left the store and never, thereafter, came back. These facts fall short of what is necessary to establish the surrender of the premises to the plaintiff and its acceptance of the cancellation of the lease, with the consequent acquisition by it of the right to possession. Nonpayment of rent did not automatically destroy the lease. It merely gave the plaintiff the option of terminating it by some definite, unequivocal act clearly showing the exercise of that option. Kligerman v. Robinson, 140 Conn. 219, 222, 99 A.2d 186; Tseka v. Scher, 135 Conn. 400, 404, 65 A.2d 169; Thompson v. Coe, 96 Conn, 644, 651, 115 A. 219; see General Statutes §§ 7107, 8274. The court failed to find that the plaintiff had
Nor is the defendant liable to the plaintiff for use and occupancy of the store premises. Recovery under that theory is predicated upon a contractual relationship between the parties. Canfield v. Merrick, 11. Conn. 425, 429; Bradley v. Davenport, 6 Conn. 1, 4. The facts found by the court relating to what took place between the plaintiff and the defendant do not establish any contract, express or implied, for the payment of rent. Nor is any contract to be inferred merely because on August 1, 1949, two weeks after the defendant had surrendered possession to the temporary receiver, the plaintiff sent the defendant a letter in which rent was demanded for a period of time that had expired. See Leonard v. Kingman, 136 Mass. 123, 125. As with the theory of trespass, the theory of liability for use and occupancy fails because there is no initial finding of the termination of the lease. Without that finding, the defendant cannot be held liable. People v. Gilbert, 64 Ill. App. 203, 206; Hamilton v. Hamilton, 25 N.J.L. 544, 549; Whitman v. Bowe, 56 Hun 141, 147, 9 N.Y.S. 65;
There is error, the judgment is set aside and a new trial is ordered.
In this opinion the other judges concurred.