67 Conn. 570 | Conn. | 1896
This action came to the Court of Common Pleas in New Haven county, by appeal from a justice of the peace. The complaint contains only the common counts. The bill of particulars embraces four items, which, with interest claimed, amount to $59.08. The first and principal charge is “1 mo. rent $50.00.” Two defenses were filed: first, a general denial; second, a special answer, as follows:—
‘‘Par. 1. On and for a long time prior to November 15th, 1893, the defendant, under a special agreement between her and the plaintiff, occupied the plaintiff’s store and a living apartment over said store, as his tenant. Par. '2. Said store was occupied and used by the defendant as a millinery and ladies’ furnishing store. Par. 3. At the time of leasing said premises by the plaintiff to the defendant, the plaintiff represented and maintained to the defendant that the said premises were in a good, tenantable and habitable condition, and agreed to keep them tenantable and habitable during their occupancy by the defendant. Par. 4. Said premises were not in good, tenantable and habitable condition at any time during the defendant’s tenancy, in that the windows in said store were not properly and suitably built and kept in repair1, so as to prevent the rain from entering within said windows, nor was the roof properly built and maintained in repair so as to prevent the rain and water from entering thereunder; nor was the furnace of said building so properly built, constructed and kept in repair as to prevent great quantities of smoke from issuing therefrom and filling the entire store and premises with smoke and dust. Par. 5. On divers days*573 between the 16th day of April, 1892, the date of the first occupancy of said premises by the defendant, and the 15th day of October, 1893, the defendant suffered great and extensive damage to her goods, wares, and merchandise, to wit: her household furniture and carpets in the apartments above the store of said pi’emises, and likewise to the goods, stock and merchandise contained in the store of said premises, and all in consequence of the untenantable and uninhabitable condition of said premises, that is to say, by the leaking of the roof of said house and the leakage of the windows in said store of said premises, and likewise by the issuance of great volumes of smoke from the furnace of said building, all of which was to the damage of the defendant in the sum of $500. The defendant claims $500 damage.”
The reply admitted paragraphs one and two of said special defense, and denied every other allegation thereof. Upon the issues thus raised the case was tried to the juiy, which returned a verdict, accepted by the court, for substantially the full amount of the plaintiff’s demand.
The defendant has assigned seventeen reasons for her appeal to this court; eleven in reference to the admission or exclusive of evidence, six in regard to the charge of the court to the jury. Most of these assignments appear to us clearly groundless; some however, have weight. But these latter, with a single exception, present questions so peculiar not alone to the present case, but to the unusual character of the trial had of such case — questions therefore neither of general interest, nor likely to arise again upon another trial of this action — that we deem it unnecessary to enter into a discussion of them ; since upon the one ground, to which we have referred, and for the reason which we will proceed to indicate, a new trial should be granted.
The plaintiff claimed the item of $50, above referred to, was due him for one month’s rent from October 15th to November 15th, 1893, of a certain store and a tenement over it, each having been rented to the. defendant for $25 per month, and occupied by her; the tenement from March 15th, 1892, and the store from April 15th, 1892.
We think the court erred in thus charging the jury, for two reasons: First, it presented to them — and as substantially decisive of the case in the plaintiff’s favor — an issue which could not properly arise under the pleadings, and, in effect, required the jury to find for the plaintiff, because the defendant had failed to prove what the reply to the special answer admitted. By referring to that answer— herein recited — it appears that the two admitted paragraphs expressly state the defendant’s occupancy of the premises “ on and for a long time previous to November 15th, 1893,” was under, “ a special agreement between her and the plaintiff.” In subsequent paragraphs of the answer, referring to the time of leasing the premises, the alleged promises and representations of the plaintiff are averred as having then been made. The injury resulting to the defendant, for which she claims damage, is then stated as having taken place “ between the 15th day of April, 1892, the date of the first occupancy of said premises by the defendant, and the 15th day of October, 1893.” Every allegation in these paragraphs subsequent to the first two, is denied. But it is evident that such denial could not reasonably be understood as contesting that concerning which the court itself declared to the jury: “ These facts, as I understand it, are not disputed by either party. They agree as to the dates when she took possession of both the tenement and the store, and when sire vacated.” This being so, the distinct question presented by the allegations and denial was this: There being an admitted valid special agreement under which the defendant entered into possession of the premises, and under which she occupied them throughout, by reason of which the plaintiff claimed and was admitted to be entitled to the agreed rent of $50 per month, concerning which the court also said: “To the
But it was, as we think, also erroneous for another reason. The finding shows, and the court said to the jury, that the parties agreed that the lease was to be for three years with the privilege of five. After the defendant entered into possession, a written lease was presented to her by the plaintiff, but was not signed. Then the only lease in fact was by parol, and a monthly rent was reserved or agreed to be paid. The court stating this, concluded, as we have seen, that by virtue of General Statutes, § 2967, it became a lease from month to month. But such is not the statute. To be a lease for a month only, three things must concur — the court refers to but two: the lease must be by parol, a monthly rent reserved, and the time of termination must not be agreed upon. The court made no reference to this last essential, except in the most incidental way in repeating one of plaintiff’s requests. It seems to us that a lease running for a fixed time could not well be considered one which had no agreed time of termination, within the fair intent and meaning of the statute. Such
There is error and a new trial is granted.
In this opinion the other judges concurred.