13 N.Y. 127 | NY | 1855
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *129
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *130
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *131 Three questions are presented in this case: 1st. Whether, upon the facts appearing in the pleadings and evidence, the plaintiff has made out a cause of action against the defendant; 2d. Whether that cause of action can be recovered upon under the pleadings, as they were originally drawn; and 3d. Whether it was in the power of the court to allow such amendments as were necessary to conform the pleadings to the facts.
Taking all the provisions of the lease together, it was manifestly the intention of the parties that in case of a breach by the lessee, or any one in under him, of the covenant "that he would not himself, nor would he allow any one else to make use of the premises for any kind of disreputable *134 business, including the keeping of a retail grocery of liquors," and a reëntry by the lessor for such breach, the lessee should remain answerable for any loss of rent to the lessor. This is necessarily involved in the provision, that in case of reëntry the lessor was to relet the premises for the benefit of the lessee. This being the agreement of the parties by an instrument under their seals, providing for the exact case which has happened, I do not see upon what ground a court can refuse to hold them to its terms. It certainly is not an illegal agreement, nor is there anything unreasonable in a lessee agreeing to completely indemnify his lessor for any injury which may arise to him by the lessee's breach of his own agreement.
By the entry for condition broken, the estate of the lessee was at an end, and the lessor was in of his former estate. Rent, as such, could therefore no longer accrue to the lessor from the lessee; his liability rested only upon his covenant looking to this very event. The complaint in this case set out the hiring and the terms of payment provided by the lease, averred the entry and occupation by the defendant and his tenants, and that the rent was due for a certain specified period; to it was annexed a copy of the lease, with a notice that the action was brought upon it. The answer and reply contained averments which put in issue between the parties all the facts material to determine their rights. Under these circumstances, there is no ground to suppose that the defendant could have been misled to his prejudice in maintaining his defence upon the merits. The plaintiff has claimed the sum to which he turns out to have been entitled, he has given the instrument upon which his claim arose; but he has called the sum rent, when in point of law it was not, strictly speaking, rent. This was not such a variance as it was beyond the power of the court to remedy by way of amendment. (Code of 1848, §§ 145, 146, 147.)
The judgment should be affirmed. *135
GARDINER, C.J., DENIO, MARVIN, CRIPPEN and DEAN, Js., concurred in the foregoing opinion.
Dissenting Opinion
It is a familiar principle, that eviction by the lessor suspends the rent. (3 Kent, 464; 1 Kern., 216; 4 Wend., 423; Taylor's L. and T., § 378, 379, Com. L. and T., 216, 523, 526; 1 Saund. R., 204, a, n, q and f.) And actual entry for forfeiture not only suspends the rent but determines the estate of the lessee. (4 Kent, 126; Co. Litt., 202, a; 2Crui. Dig., 54; Com. L. and T., 324; Stuyvesant v. Davis, 9 Paige, 427.) So much so that it was held, in the court of exchequer in England, that after service upon the lessee of a declaration in ejectment for a forfeiture by the lessor, the latter could not sue for rent due or for covenants broken after such service. (Jones v. Carter, 15 M. and W., 718.) By the forfeiture and the election of the lessor to enforce it, the relation of landlord and tenant is dissolved; and the lessor, by commencing an action of ejectment, elects to consider the lease determined and the lessee a trespasser from that time; and he cannot afterwards insist upon the further performance of his covenant. (Stuyvesant v. Davis, 9 Paige, 430; see 2Seld., 80.) The tenant will not be excused from the payment of rent which had before become due. (Id.; Hartshorne v. Watson, 4 Bing., N.C., 178; Harvey v. Oswald, Cro. Eli., 553, 572;S.C. Nom. Pennant's case, 3 Co., 64.) But the estate is so completely determined, that it seems, at one time when equity gave relief to the tenants, it was by a new lease. (Platt onCov., 208; Hack v. Leonard, 9 Mod., 90; S.C., 6 Vin., 438.) In this case the plaintiff not only made his election, but obtained possession by a judgment and execution; and he cannot now claim that this did not determine the lease.
But it is said that the lease not only gives the lessor power to enter upon and eject from the premises the occupants engaged in the prohibited pursuits, but to relet the same for the benefit of the defendant. But was it intended that *136 the landlord should be the mere agent or instrument of the defendant for clearing the premises, when the defendant himself might be the delinquent party? But if that were so, the plaintiff has availed himself of it as a condition, a breach of which worked a forfeiture of the estate at his election; and that election he has made in the most solemn and conclusive manner, by the judgment of a court of law Could the parties have understood that if the lessee broke this condition, an action of ejectment should be brought against him, and he should be turned out, and the lessor again relet the premises for his benefit or to his use, and for him? In whose name were they to be let? Not in that of the defendant, for the record was conclusive against him; and he could not have collected the rent because no title would have passed to his lessee. (Platt on Cov., 575.) Indeed, there could be no reëntry for the forfeiture to the use of the lessee; for if such an anomalous and unheard of course could have been valid, that use would have been executed; and so, after the farce of a recovery and eviction, the parties would have been just where they were ante litem. But the law is not chargeable with such an absurdity. No stipulation in a lease would nullify a final judgment of the court. And if the plaintiff recovered his former estate, which he did, the defendant is not liable for subsequent rent; nor can he be sued on the covenants in his lease. The decision in Jones v. Carter goes to that extent.
The learned judge at the circuit, it seems, held that the plaintiff could not recover rent; but he thought the jury might give a verdict for the same amount, upon an implied covenant or agreement, to pay damages for a violation of the agreement not to suffer an improper use of the premises; or in some way to indemnify the lessor, if they were not relet, or for as much. And as we cannot know what course the defendant would have taken, had the judge decided that he was liable for rent only, we must hold that the plaintiff is entitled to recover upon such implied covenant *137 or agreement, and for the same amount, and on these pleadings, or there should be a new trial. But no such cause of action is hinted at in the complaint. That is simply for rent and taxes, interest and costs. Nor have I been able to study out any such cause of action in the reply, even if it be admissible under the new system, to abandon the complaint, and first state the cause of action in a reply. The reply admits the recovery, and shows that it was in conformity to the conditions of the lease; states the inability of the plaintiff to relet, and that the suit was with the knowledge, privity and consent of the defendant. But all this was for the purpose of showing that the plaintiff was entitled to the rent; and that is what he claims throughout. And besides, the consent of the defendant would not alter the effect of the judgment; and indeed it is not alleged that it was agreed or understood that the lease should not thereby be determined. The judge at the circuit held that the plaintiff could recover under these pleadings "with proper amendments," which he could and would allow. But the record sent to us contains no such amendments, and if it had, there are two answers to the claim of the plaintiff. He had put it out of his power, as we have seen, to sustain an action upon any covenant broken, after he brought his action of ejectment; and lastly, if there was any such agreement as he recovered upon, it was repugnant to the provisions of the lease, and its plain, legal construction. (Scovill v. Cabell, Cro. Eli., 107.)
I think the judgment should be reversed.
Judgment affirmed. *138