Davidson v. Poli

| Conn. | Jun 30, 1925

It seems clear that the Court of Common Pleas rightly held that the justice of the peace erred in charging the jury that the recitals of the bond, given practically two years after the execution of the lease, were to be read into the lease itself as if incorporated therein. There is nothing on the face of the bond which indicates an intention to modify in any way the antecedent contract of lease. On the contrary, the recital in question is that the lessee has theretofore executed the lease "and does under the terms of said lease agree to pay for taxes, insurance and repairs of the interior of said property during the term of said lease." And the condition of the bond is that "if the said Abe Davidson shall well and truly perform and adhere to the terms of the said lease, and faithfully carry out the covenants as therein specified," then this obligation shall be null and void, etc. The apparent purpose of the bond was to secure the performance of the lessee's existing covenants as specified in the lease; and not to add a new covenant thereto.

It does not appear that any bond was required when the lease was executed, and the subsequently executed bond stands on this record as a separate collateral undertaking. Moreover, the action of summary process is wholly statutory, and is available only when a lease expires by lapse of time, "or by reason of any express stipulation therein." As pointed out in DuBouchet v. Wharton, 12 Conn. 533" court="Conn." date_filed="1838-07-15" href="https://app.midpage.ai/document/du-bouchet-v-wharton-6575163?utm_source=webapp" opinion_id="6575163">12 Conn. 533, 538, "it has ever been the policy of our law, not to submit the title to real estate to the decision of a justice of the peace," and for that reason the action of summary process is limited to "a few plain, simple questions of fact." We are of opinion that under § 6119 of the General Statutes, the action is limited to cases where the issue of the expiration of the lease presents itself as a simple issue of fact, not complicated by questions as to the proper legal construction of the lease. In the case before us the lease contains no express covenant for the payment of insurance premiums by the lessee, and the most that can be said is that by construing the lease and the bond together some inconclusive indication may appear that the parties put that construction upon the ejusdemgeneris clause — "and all other ordinary and necessary expenses and improvements incident to the business aforesaid." We do not think that the statute intended to leave questions of that kind to be summarily determined in a justice court.

The bill of exceptions does not set forth the rulings on evidence complained of with sufficient clearness to enable us to know what testimony was excluded by the trial justice, or whether the Court of Common Pleas erred in holding that the trial justice committed error in excluding the questions referred to in paragraphs six and eight of the bill.

The questions ruled out are not stated, no reason is given for the objection made, and no statement is made as to the character of the testimony offered and excluded.

There is no error.

In this opinion the other judges concurred.