Lockwood v. Lockwood

22 Conn. 425 | Conn. | 1852

Waite, J.

It has been holden, that, in this state, an ac-

tion of indebitatus assumpsit may be sustained, upon an implied promise, arising out of the use and occupation of real estate, by permission of the owner, without proof of any express promise to pay rent. Gunn v. Scovil, 4 Day, 228. And, by a recent statute, the action of debt on book, was made a remedy, co-extensive with the action of general assumpsit. Statutes, title 1, sect. 221.

In the first place, it is claimed, that this action can not be sustained, unless there has been an actual occupation of the store, by the defendants,—and this is undoubtedly true; and so are the authorities. How v. Kennet, 3 A. & E., 659, (30 E. C. L., 175.) Richardson v. Hall, 1 B. & B., 50, (5 E. C. L., 14.) But it is expressly found, by the auditor, that, during a portion of the period, for which the plaintiffs claim to recover, the defendants were, in the actual occupation of the premises, and the question rather is, what measure of compensation the plaintiffs are entitled to receive, for such occupation, in the manner, and under the circumstances, detailed in the report. It is also found, that they were tenants from year to year, at a stipulated rent, and had so been, for several years,—and that, within four months after the commencement of the year, they abandoned the store, without the permission of the plaintiffs, and it remained vacant until the end of the year. What measure of compensation are the plaintiffs entitled to receive, for such an occupancy ?

The defendants say, only such a proportion of the rent, as the period of their occupancy bears to the whole year,— and this amount they have tendered to the plaintiffs. But to this proposition, we can not, upon any principle, yield our assent. The plaintiffs. may well say that, in heno fondera non venimus. We leased you the store, at a specified rent, for a year, but we never agreed, that you might occupy it one-third of a year, for a corresponding proportion of the year’s rent. A contract for the rent of a building for a year, at a specified price, does not imply an agreement, that the tenant may occupy it, for such portion of the time as he pleases, at a proportioned rent.

In a similar case, Littledale, J., said: “ Under the contract between these parties, the rent was payable half yearly, for a half year’s occupation. That was an entire contract, and could not be apportioned, without the assent of both parties.” Hall v. Burgess, 11 E. C. L., 246.

So in another case, where the rent was payable quarterly, a dispute having arisen between the landlord and tenant, the former said to the latter, before the expiration of the quarter, that he might leave the premises, which he accordingly did. The landlord afterward brought a suit, to recover rent for that portion of the quarter, during which the premises had been occupied by the defendant, and it was holden, that he was not entitled to recover. Bailey, J., said : “ The parties having entered into an express contract, by which the rent was to be paid quarterly, I think the law will not imply a contract to pay rent, for any period less than a quarter.” Grimman v. Legge, 15 E. C. L., 229. Even if the defendants were not liable for the whole year’s rent, at the stipulated price, justice requires, that they should make a fair and reasonable compensation to the plaintiffs, for the use of their property, in the manner- they held it, and that compensation might be much greater than a portion of the rent corresponding with the time the building was occupied. A man might much rather let a house or store to a tenant who would occupy it for a year, than to another, upon the same terms, who would abandon it, at his pleasure, leaving it to stand empty during the residue of the year, and at a time when no other tenant could be found to occupy it, upon any terms.

But, however this may be, the rule seems now to be perfectly well settled in England, that a tenant from year to year, can not, without the consent of his landlord, abandon the possession of the demised premises, at any time he pleases, during a year, and thereby exonerate himself from the payment of the rent, during the residue of the year. Thus, in an action for the use and occupation of two upper floors, in a warehouse, it appeared, that the defendants had occupied them at a specified rent, payable quarterly,from August, 1830, to November, 1834, when they were accidentally consumed by fire, and the defendants ceased to occupy them ; they were afterward repaired by the plaintiff, and leased to another tenant, with the consent of the defendants. Two questions were made ; the first was, whether the defendants were liable for the rent, from November, 1834, when the fire occurred, to March, 1836, when the premises were leased to another, by the plaintiff.

Tindal, C. J., in delivering the opinion of the court, said ; “ If there had been an agreement in writing between the parties, for a term of years, no question could have been made, but that the term of years still continued: and a tenancy from year to year, is, as to its legal character and consequences, the same as a term for years. We think, therefore, the defendants continued tenants of the plaintiff, until the tenancy was put an end to, by the plaintiff’s letting the premises to another tenant.” And, in relation to the other question, he held that the action was well brought, and said that “ the cases referred to in the argument, in which the tenant had been allowed to withdraw himself from the tenancy, and refuse payment of rent, would be found to be cases, where there had been either error, or fraudulent misdescription of the premises, which were the subject of the letting, or where the premises had been found to be uninhabitable, by the wrongful act, or default, of the landlord himself.” Izon v. Gorton, 35 E. C. L., 198. 1 Sw. Dig., 91.

It is true, that, in the case last cited, the judge, in giving his opinion, that the action would lie, laid much stress upon the word holden, in the English statute. But we apprehend, that our action of assumpsit, for the use and occupation of real estate, is as broad and comprehensive as the same action in England. • We see no reason why it should not be. It is founded upon the liberal principles of our common law, unrestricted by any limited expressions of a statute. It will lie in all cases, where there has been an actual occupancy, by the tenant, of lands, by permission- of the owner, under a parol contract, express or implied, to pay rent, although the amount to be paid for such occupancy may be greater or less, according to the circumstances under which it was had. And, in another case, where the executors of a lease, for a term of years, had underlet, and were unable to get the tenant out, at the expiration of the term, it was holden, that they were liable only for the rent, during the time the landlord was kept out of possession. But, Littledale, J., remarked, that “ if the original tenancy had been from year to year, they would have been liable for a whole year’s rent.” Ibbs v. Richardson, 9 A. &. E., 849, (36 E. C. L., 301.) So in Penero v. Judson, Gaselee, J., said, “ Parties have repeatedly been held liable, in actions for use and occupation, although there has not been an actual occupation, for the whole term, in respect of which the actions were brought. 6 Bing., 206. (19 E. C. L., 56.)

The same doctrine has been recognized by our own courts. And in an action of assumpsit for the use and occupation of a store, it was holden, that, if a tenant, after the expiration of a lease, for a year, holds over, the law considers him responsible, as hiring for another year, upon the same terms as before. And if, during the continuance of a tenancy, the tenant abandons the possession of the premises, he is as much liable for the rent, as though he had continued his occupancy. Bacon v. Brown, 9 Conn. R., 334.

It is, in this case, expressly found by the auditor, that the defendants were tenants from year to year. And if we were called upon to review that finding, we should come to the same result, from the other facts embraced in the report. For the authorities show, that, if a tenant enter into possession of real estate, as tenant of the owner, under an agreement, invalid by reason of the statute of frauds, or other cause, and continue in such possession, paying rent for the same, at the end of each year, and the rent is received and accepted, as such, by the owner, the tenant becomes a tenant from year to year, and he may be considered as holding, according to the terms of that agreement, and it may be resorted to, for the purpose of calculating the amount of rent. Berry v. Lindley, 42 E. C. L., 263. Mann v. Lovejoy, 21 id., 454. DeMedina v. Polson, 3 id., 21. Hamerton v. Stead, 10 id., 159. Clayton v. Blakey, 8 T. R., 3. Weaver v. Belcher, 3 Esp. R., 448. Martin v. Watts, 2 id., 501. Admitting, therefore, all the evidence in the case, the mere fact, that the defendants abandoned the occupancy of the store, before the expiration of the year, will not exonerate them from the payment of the rent, for the residue of the year. Are they excused, by reason of the want of repairs on the store, or the injuries occasioned by the fire ? It is found, that there was no agreement, on the part of the plaintiffs, to keep the building in repair, and, that the condition of it, when the defendants left, was not materially different from what it was, at the commencement of the year, with the exception of the ordinary decay, and the damage at the time of the fire. If, therefore, the defendants had intended to leave the store, because it was not in sufficient repair, they should have done so, at the commencement of the year. And then as to the fire, it is clear, from the English authorities, that they are not exonerated on that account. Baker v. Holtpzaffell, 4 Taun., 45.

Whether any different rule prevails in this state, we do not deem it necessary to enquire, as the injuries occasioned by the fire, were too trifling to justify the defendants, in abandoning the possession on that account, especially as they made no demand of the plaintiffs, for the repair of the store.

We are, therefore, of opinion, that the plaintiffs are entitled to judgment in their favor, and so advise the superior court.

In this opinion, the other judges concurred.

Judgment for the plaintiffs.