4 Colo. App. 252 | Colo. Ct. App. | 1894
delivered the opinion of the court.
This is an action for the recovery of rent. On the 19th day of August, 1890, Bennett & Meyers, appellees, leased to F. H. Lay certain rooms on the second floor of their three-story building on the corner of Seventeenth and Stout streets, in the city of Denver, for the term of two years. Lay occupied the rooms with his family, consisting of his wife and child, until the 19th day of July, 1891, when he abandoned them, and never returned. This suit is for rent which accrued between the 19th day of July and the 5th day of October, 1891. The defense is, conduct of plaintiffs amounting to an eviction. The evidence is that the third story of the building was occupied by lewd and disorderly female tenants of the plaintiffs, who were in the habit of receiving male visitors; that the occupants and their visitors indulged in boisterous and disorderly conduct, jumping upon the floor, screaming, singing, and using profane and obscene language, until a late hour in the night, breaking the sleep of defendant and his family, depriving them of the beneficial enjoyment of the premises, and giving the building an unsavory reputation. The defendant made frequent complaints to the plaintiffs of the character and conduct of these tenants; and in January, 1891, the plaintiffs caused them to remove, and supplied their place with men. While the rooms were so occupied, there was no noise, and the defendant was undisturbed; but, in March, 1891, the men vacated the building, the women were restored, and the unseemly noise and disturbance recommenced and continued, until the defendant, unable longer to endure the invasion of his peace, abandoned the premises. During this last period he repeated his com
The foregoing facts are undisputed, and if they constitute a defense to the action, judgment should have been for the defendant. If they are not a defense, the plaintiffs were entitled to judgment for $220.50, which was the exact amount due. The judgment should have been for this amount or for nothing; but the court by some process, peculiar to itself, arrived at the conclusion that the plaintiffs ought to have $180, and accordingly rendered the judgment for which this appeal is taken.
There is nothing in the record to justify this judgment. It is absolutely without support from any evidence in the case, and is clearly and unmistakably erroneous. The evidence gives rise to a question which it is necessary to dispose of, to the end that, upon a retrial of the case, the rights of the parties may be intelligently settled. The answer to this question will determine whether the facts in evidence may be shown in bar of the action for rent. The authorities are all agreed that the eviction of a tenant from the demised premises by title paramount, or by the landlord, is a bar to any demand for rent, because it deprives him of the consideration for which rent was to be paid. In many of the cases in which this doctrine was announced, there was an actual dispossession of the lessee by the lessor; but there is also an agreement among the cases that to constitute an eviction which will bar or suspend rent, a direct or physical expulsion is not necessary; and that any act, willfully done by the landlord, which has the effect of driving the tenant from the premises, amounts to, and may be treated as, an eviction. As to what conduct on the part of the landlord will justify the tenant in abandoning the premises, and interposing the plea of eviction to an action for the recovery of subsequently accrued rent, there has been considerable adjudication; and an examination of some of the leading cases will materially
In Dyett v. Pendleton, 8 Cowen, 727, the facts, as stated by Crary, senator, were, that the plaintiff introduced into the house, certain rooms in which had been leased to the defendant, divers lewd women, who made a great deal of indecent noise and disturbance, disturbing the defendant and other persons sleeping in the house, bringing odium and infamy upon the house as- a place of ill-fame, and compelling the defendant, as a consequence of such practices, to leave the premises, to which he did not return. The court held that proof of these facts ought to have been received, because they tended to prove a constructive eviction, which would exonerate the defendant from the payment of rent. This case gave rise to considerable discussion, and was the subject of more or less comment in a number of adjudicated cases. In Royce v. Guggenheim, 106 Mass. 201, Gray, J., holding that it was unnecessary to rest the judgment of his court upon that case, remarks concerning it that it has since been considered, even in New York, an extreme case, and refers to Etheridge v. Osborn, 12 Wend. 529; Ogilvie v. Hull, 5 Hill, 52; Gilhooley v. Washington, 4 Comst. 217; and in the opinion in DeWitt v. Pierson, 112 Mass. 8, the following occurs: “The case of Dyett v. Pendleton, 8 Cow. 727, is relied upon by the defendant. This has been called an extreme case, and it has been modified, if not overruled, by later decisions in New York; and this court declined to rest its judgment upon it in Royce v. Guggenheim. In Etheridge v. Osborn, the court, referring to the case of Dyett v. Pendleton, say that it carried the doctrine of eviction to its extreme verge. In Ogilvie v. Hull, Nelson, C. J., says, speaking of the same case, that it shows only an application of the doctrine of eviction to an extreme case; and the court, in Gilhooley v. Washington, say that it has been regarded as an extreme case. These criticisms, if they may be so called, are certainly not very severe, and would hardly seem to justify the language of the Massachusetts court. But in the later New York cases, the
In Edgerton v. Page, Grover, J., delivering the opinion of the court, says : “ Whether this eviction must be actual, by the forcible removal of the tenant by the landlord from the demised premises or a portion thereof, was not settled in this state until the case of Dyett v. Pendleton. In that case the principle was established by the court for the correction of errors, that when the lessor created a nuisance in the vicinity of the demised premises, or was guilty of acts that precluded the tenant from the beneficial enjoyment of the premises, in consequence of which the tenant abandoned the possession before the rent became due, the lessor’s action for the recovery of rent was barred, although the lessor had not forcibly turned the tenant out of possession. Ever since that case, this has been considered as a settled rule of law, binding upon all the courts of this state. Such act of the lessor, accompanied by an abandonment of possession by the lessee, is deemed a virtual expulsion of the tenant, and equally with an actual expulsion bars the recovery of rent. The reason of the rule is, that the tenant has been deprived of the enjoyment of the demised premises by the wrongful act of the landlord; and thus the consideration of his agreement to pay the rent has failed.”
See, also, Leadbeater v. Roth, 25 Ill. 587; Jackson v. Eddy, 12 Mo. 209. In the latter case, the court, approving the decision in Dyett v. Pendleton, say: “ The consideration of the lessee’s undertaking to pay rent is, the quiet, peaceable and indisputable possession of the premises leased, and is, in its nature, a condition precedent to the payment of rent. If the lessor by any wrongful act disturbs the possession which he should protect and defend, he thereby forfeits his right, and the lessee may abandon the premises leased, and thereby exonerate himself from liability to pay rent.” The principal case is also cited with approval in Dougherty v. Seymour, 16 Colo. 289.
It will be observed that in this case the intention of the landlord to evict the tenant is made an element of the acts done, determinative of their character; but we think the meaning of this is sufficiently explained in Royce v. Gruggenheim. A distinction is there made between an act which the lessor might lawfully do upon his adjoining property, the effect of which might be to diminish the tenant’s beneficial enjoyment of that occupied by him, and an act which is in violation of law. In the former case the act must have been done with the intention of expelling the tenant ; but it’was also held, even where the act complained of was lawful, that if its necessary effect was to change the character and beneficial enjoyment of the demised premises, the landlord would be responsible for the result of the act without further proof of unlawful intent. In the kind of proof required, there is,
In its findings, the court below manifestly disregarded the evidence, and it is assumed that no question in the case was considered by it. • Let the judgment be reversed.
Reversed.