*1 (Nо. May 22, 1928.) 4855. McCULLOUGH, HENRY Appellant, v. ELEANOR
CUTHBERT, Respondent. Pac.
[267 828.] *2 Bandel, Appellant. C. W. Morrison and A.C.
2S6 *3 McCall, Eespondent.
F. A. *4 BRINCK, April, 1923, respond- Commissioner. In ent, Cuthbert, Eleanor appellant, Henry leased to McCul- lough, certain farm years, lands for a term three and appellant possessiоn. 23, went into 1924, On October at a time when appellant engaged plowing in land leased, respondent so upon premises went and him told she was not farming satisfied with his and that she had renter; another аppellant stop that she wanted plowing premises; to vacate the and that if he did not surren- possession der would Appellant she sue him. discontinued plowing until again October when began he respondent plow, day and on again that visited him and him reciting served on a keep notice that he had failed to lease, the covenants and that reason of such breach she vоid, elected declare the lease null and and de- premises. manded of the Appellant thereupon plowing ceased but refused vacate the premises, and in following spring oрerations. continued farming his In December, 1924, respondent brought against suit appellant court, alleging in the district the lease large and a number of the part breaches covenants therеof on the appel- praying for lant, cancelation lease, possession damages withholding. their In that suit, judgment appellant. was rendered for
Appellant brought this action to reсover on the respondent’s theory conduct, stated, as above consti- quiet a breach of enjoyment tuted a covenant for
299 lease, implied in the written alleged premises, to hаve been The $1,000. of prayed damages generally in the sum and to went cause complaint, and the respondent answered the ease, respondent’s his appellant had rested trial, аnd after for judgment entered granted was and for nonsuit motion appeal taken. her, judgment was which this from de contends to be relying upon he what Appellant, upon the judgment for answer, moved fеctive denials in the trial court by the motion the denial that pleadings, and of assignment This of error. subject appellant’s first of is the his appellant had rested motion not made until after was by his introduс the answer waived case. Defects in were plead judgment on the for and the motion evidence, tion of Jones, 3 32 Pac. Ida. (Conant v. ings was too late. 793; 130 Pac. Lovell v. Joyce 250; Rubin, Ida. v. 614.) Wentwоrth, 39 Ohio St. motion, assigns his error denial of
Appellant next as permission ease, for to amend rested his made after he had assigns proof; and also to as pleadings to conform his proрosed The amendment granting nonsuit. of error damage special items of attempted set out as permitted court had evidence over concerning which the they specially pleaded, objection that were not respondent’s allege the former action had attempted to that and also maliciously wrongfully, vex, and to and commenced been permit court refused plaintiff. The and harass annoy appellant he amendment, apparently considered because any prove cause of action. failed had quiet that a covеnant for en generally held It is (36 implied 74), in a contract of lease C. J. but is joyment there of such covenant must breach be an effect a evic constructive; and even if be actual or it deemed either tion expulsion exist without actual can an eviction premises, or the from the abandonment of the the tenant him, actually there must at least be acts inter enjoyment or possession premises. fering his with Tenant, 79; 354.) on Landlord & p. Jones sec. (Ibid., respond appellant after acts of The at all times complained possession ent in full which are of remained оccupied extent premises, them to the same all of suspended previously temporarily as he had he done. While farming operations upon respondent’s demand suit, yield possession any part he did not threat suspension plowing not premises; his *6 voluntary compelled hy any respondent, on act of but was appellant’s him operation by at part, and resumed the was еnjoyment premises will. of the was His actual beneficial way of a, not disturbed in such as to amount to a breach enjoyment. quiet the covenant for however, contended, bringing It is that the of the former respondent ap by breach, suit amounted such and that to damaged pellant attorney’s least to the at the extent of expenses him in that suit. Where by fees a incurred express agаinst by suit, lease contained an covenant eviction bringing ejectment an it was that the suit with held maliciously, a out reasonable cause and constituted breach (Paddell Janes, Rep. 146, 90 Misc. 152 of the covenant. v. grantor Supp. 948.) brought And where a in a N. deed Y. conveyance set have aside for in action to the fraud its bringing procurement, that the it was held of such action probablе maliciously cause and was a breach without of a enjoyment simple quiet contained covenant for in the deed. 207, Vilas, 165.) 23 99 Am. Dec. In (Akerly Levitzky Wis. v. Canning, 299, brought 33 a lessee Cal. action for dam v. ages lessor, against for breach the for of an ex quiet enjoyment, for press which breach covenant was al publicly giving leged pretending out and consist of that right possess the plaintiff premisеs, had no demised the law actions to recover bringing two and of at which was premises, one of dismissed the the other of lessee, judgment in for the as a resulted which result of subtenants, doubting plaintiff’s the lаwful which actions quit plaintiff’s possession, had premises, the ness of the plaintiff vacant, and the was unable leaving them to let to that had, by the lessor parties. It was held such acts, other breaсh, quiet enjoyment, for covenant the committed a bringing the in good malice faith and lack of and that his a de did not constitute immaterial, and former suits were Agar damages. pointed in out It is fense tо action for the 422, 84, 56 Pac. St. Winslow, 587, 69 Am. v. Cal. as complained of Canning the acts Levitzhy in that v. making ten amounting to an eviction had effect vacant; leaving them premises, quit ants the lessee A. 332, L. R. 722, 169 Pac. Knight, 176 and in Black v. Cal. in comment supreme California, court of thereof, reciting the facts ing after Levitzky case, on the says: deprivation of the be an actual
“But that there must enjoyment constitutе an evic- beneficial authority is not emphatically stated, and case tion was prosecu- mere proposition that institution judgment, an landlord, even to de- by unlawful tion, can held actiоn, good malice, in faith and without be tainer enjoyment of the invasion of beneficial constitute an quiet premises guaranteed his covenant for the tenant enjoyment.” pending where,
In the last cited it was held case *7 judgment in thе appeal from favor of landlord in an an a action, unlawfully the surrendered unlawful detainer tenant no premises, effecting the there was eviction a possession of although quiet enjoyment, for it the covenant breach of lease might of the amount to such termination as would liability rent; for from further and relieve tenant the by landlord, judgment, in an prosecution the of the merе good malice, in faith and without action, detainer unlawful obtaining judicial a determination of purpose for the possession he entitled by whether is to question reason the part tenant, оf the is on not an eviction. default the of some who, prob without If landlord malice a and with possession brings an action for of the cause, able good he in deems what faith to be violatiоns because thereby subjects covenants, himself to the lessee’s action, to establish his cause of fails landlords in he case appealing to from the courts to be deterred vindicаte would 302 rights they absolutely
their unless are certain of success. is policy justice It the of the law that courts should open persons be to all questions to who desire to have as personal rights adjudicated. and property (Porter John v. son, 96 Hegan 23 145, Ga. E. 123; S. Mantel Cook’s Co. v. (Ky.), 929.) Admr. 57 W. a suit, prob S. And such with able malice, cause a without does not in itself constitute breach of implied an quiet еnjoyment, for covenant where (Interna tenant retains premises. of the tional Trust Schumann, 287, Co. v. 158 E. Mass. 33 N. 509; App. 854.) Morris 33 Battey, v. Ga. 126 E.S.
In although bar, the case at amendment offered proof alleged probable to conform to malice and want of in action, supporting cause the former nowas evidence there allegations. probable such Neither nor malice want оf cause shown, was and these could not be from the inferred mere respondent failure of the to recover in former action. (38 419; Long Burley Bank, C. J. v. State Ida. 1119.) Pac. It is clear there here eviction, no ac constructive, tual or theory upon ap and there is no which pellant recovery a case damages. made out The properly court granted denied offered amendment the nonsuit. assigned appellant’s
Error is also in the denial of application reopen to testify the case him to allow his dispossession respondent portion aсtual aof of the land making However, appellant, applica in leased. such tion, gave no testify; indication that he would in so testify, appellant order so have would had to contradict previous contrary. testimony assign his own This merit. ment is without
We recommend affirmance judgment, with respondent. costs to CC., and Baker,
Varían concur. foregoing approved PER CURIAM. The is as opin- *8 judgment of the court, ion and the is affirmed. Costs respondent.