62 A.2d 194 | D.C. | 1948
A tenant brings this appeal from a judgment of possession based on a verdict directed against him on his opening statement.
“We propose to show that in July of 1946 Mr. Anderson came to the tenant, Mr. DeGrazio, and wanted to raise the rent, that then and there they had an agreement, a definite oral understanding that in consideration of Mr. DeGrazio paying the increased rent Mr. DeGrazio could remain in the premises for the duration of Mr. Anderson’s lease, that is, Mr. DeGrazio would assume the burdens and benefits of Mr. Anderson’s prime lease. * * * Mr. Anderson’s lease terminates next June, 1949, however, there is a provision in that lease which could terminate it in ninety days at the option of Anderson’s lessor. He made these provisions known to Mr. DeGrazio. We will further show that Mr. DeGrazio paid the increase in rent upon Anderson’s representation to him that he, DeGrazio, could stay in the premises as long as Anderson remained, and then, further, we will show that upon that representation Mr. De-Grazio made certain substantial improvements to the premises predicated upon the belief that he would be permitted to stay for the remaining portion of the lease,*195 subject, of course, to the ninety-day provision, whichever terminated first.”
On plaintiff’s motion the trial judge ruled that this statement did not outline a defense, refused to permit any testimony, and directed a verdict for plaintiff.
We have previously said that to decide a case on an opening statement “is an extreme measure and trial judges should invoke it most cautiously, for the opening statement is to be construed liberally and favorably to plamtiff’s case.”
“Plaintiff is entitled to the benefit of all inferences that may be drawn from his counsel’s statement. To warrant the court in directing a verdict for defendant upon that statement, it is not enough that the statement be lacking in definiteness, but it must clearly appear, after resolving all doubts in plaintiff’s favor, that no cause of action exists.”
Applying these tests here we must rule that in this case it was improper to direct a verdict on the opening statement.
Defendant was asserting an equitable defense. He proposed to prove that he had a definite agreement with the plaintiff-landlord whereby in consideration of an increased rental he could remain in possession of his barber shop for the remainder of the landlord’s term. He stated that the plaintiff’s prime lease with his own lessor ran until June 1949 subject to a provision whereby it could be terminated on ninety days notice. He said he would prove that upon plaintiff’s representations he made substantial improvements to the premises “predicated upon the belief that he would be permitted to stay for the remaining portion of the lease.” This single recital in the opening statement was enough to overcome plaintiff’s motion for a directed verdict and entitled him to present his defense to the jury.
Long ago, in the leading case of Kresge v. Crowley, 47 App.D.C. 13, it was held that despite the statute of frauds
Defendant also recited that he agreed to and did pay the increased rental exacted of him as a part of the new agreement and continued in possession thereunder. These circumstances alone, if they could be shown to amount to a partial performance, would take the case out of the statute of frauds.
Appellee argues that a different result is required by our decision in Ross v. Brainerd, D.C.Mun.App., 54 A.2d 859. That case, however, went to the jury, which in response to a special interrogatory specifically found that the landlord had’made no promise of an extension of a lease; and we said that such finding by the jury made the doctrine of Kresge v. Crowley, supra, inapplicable. We also ruled that the alleged promise was too indefinite to make a contract. Such cannot be said here; at any rate not in the present posture of the case.
Reversed with instructions to award a new trial.
The case was here on an earlier appeal which we dismissed as being prematurely brought, DeGrazia v. Anderson, D.C.Mun.App., 58 A.2d 306, appeal denied by United States Court of Appeals (No. 9804) May 13, 1948, and in which our decision has no bearing on the issues now before us.
Custer v. Atlantic & Pacific Tea Co., D.C.Mun.App., 43 A.2d 716, citing Oscanyan v. Winchester R. Arms Co., 103 U.S. 261, 26 L.Ed. 539; Hornblower v. George Washington University, 31 App.D.C. 64, 14 Ann.Cas. 696; Horne v. Ostmann, D.C.Mun.App., 35 A.2d 174.
See also Mitchell v. David, D.C.Mun. App., 51 A.2d 375.
Code 1940, 12 — 302.
Shell Eastern Petroleum Products v. White, 62 App.D.C. 332, 68 E.2d 379; Hoffman v. F. H. Duehay, Inc., 62 App.D.C. 206, 65 F.2d 839; Thalis v. Wurdeman, 73 App.D.C. 322, 121 F.2d 70.
Townsend v. Vanderwerker, 160 U.S. 171, 16 S.Ct. 258, 40 L.Ed. 383; Mars v. Spanos, 78 U.S.App.D.C. 230, 139 F. 2d 369; Pannell v. Bayne, 56 App.D.C. 240, 12 F.2d 181; Faunce v. Wood, 55 App.D.C. 330, 5 F.2d 753, 40 A.L.R. 208; Walsh v. Rundlette, 2 MacArthur 114, 9 D.C. 114.