Jabbour Bros. v. Hartsook

131 Va. 176 | Va. | 1921

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

There are several assignments of error by the lessees, the plaintiffs in error, complaining of the action of the trial court in giving and refusing instructions; but as the verdict of the jury was in favor of the lessees to the full extent of their claim, if there was error in such action of the court, it will not be considered by us, as it was manifestly harmless error so far as the lessees are concerned.

The sole remaining assignment of error is that the trial court erred in setting aside the verdict of the jury and in entering judgment for the lessor, defendant in error, Hartsook. This presents the following question:

[1] 1. Was the verdict of the jury plainly wrong or without evidence to support it?

This question must be answered in the affirmative.

In view of the fact that the evidence in the case shows that by mutual agreement between the lessor and the lessees, entered into before the term of the demise began, the monthly rent reserved was increased by $12.50 per month from the beginning of the term; that such extra rent was “in arrears and unpaid” when the notice was given on March 23, 1920, so that such notice terminated the tenancy ten days thereafter, to-wit, on April 3, 1920, in accordance with the seventh clause of the lease, and the tender on April 8, 1920, of the rent in arrears, being after such termination, was too late to prevent the termination which had already occurred; and as there was no conflict in the evidence on those subjects, it seems plain to us that there was no evidence before the jury to sustain the verdict for the lessees, and that the verdict was plainly contrary to the evidence.

This being so, all the other matters in controversy in the case, concerning whether under the second clause of the lease there was a forfeiture because of the subletting, or a forfeiture because of the use of the premises for a purpose other than for a general wholesale merchandise provided for in the lease, or whether such forfeitures were waived by the lessor by his acceptance of rent prior to the giving of the notice last mentioned, and other interesting questions raised in connection with these subjects ,¿n behalf of the respective parties and the authorities cited and relied on upon those questions and subjects become immaterial and, hence, need not be dealt with in this opinion.

[2] The seventh clause of the lease provides that if the rent shall “at any time be in arrears and unpaid,” the lessor may terminate the lease at the expiration of ten days from the time of giving the notice, such as was given as aforesaid. Hence, neither the common law rules on the subject of what a landlord must do to terminate a lease because of non-payment of rent, nor the statute in Virginia on the subject, have any application. The subject is governed and controlled in the case in judgment by the express contract of the parties and by the action of the lessor in accordance therewith.

We are, therefore, of opinion that there was no error in the action of the trial court in setting aside the verdict of the jury and in entering judgment for the lessor.

The judgment under review will be affirmed.

Affirmed.