23 Haw. 739 | Haw. | 1917
OPINION OF THE COURT BY
This is a reappearance of the case which is reported ante p. 349. The plaintiff claimed damages for breach of the covenant for quiet enjoyment contained in the lease entered into between the parties on August 21, 1894. It was held that a demurrer to the complaint was properly sustained on two grounds, namely: That it was not made to appear that the persons who, it was alleged, had prevented the plaintiff from
In the second count it was alleged that “because of said hitherto total failure and neglect of lessors to make the demised premises available to lessee, plaintiff now elects to rely no longer on performance by lessors, but to treat said failure as entire, and to treat said lease as terminated, and under the obligations implied from said contractual relations to claim damages” etc. It was alleged that during the first five years of the term the lessee paid rent in the sum of $1590; that on January 2, 1914, she paid a judgment obtained against her by the defendants in an action for rent which, with costs of defending the action, amounted to the sum of $2551.65; that on June 25, 1915, and on November 4, 1915, the defendants obtained judgments in further actions
The amended complaint was filed evidently without objection on the part of the defendants. A demurrer was interposed demurring generally to the amended complaint and setting up the statute of limitations. And as, for reasons which will be stated, we think the second count set forth a cause of action, we hold that the demurrer was properly overruled.
The defendants’ plea in bar set forth that in the actions for rent referred to in plaintiff’s complaint the defendant set up and undertook to prove in defense of the actions an actual eviction from a part or the whole of the demised premises and that the issue was in each case determined adversely to the defendant, the plaintiff herein. No issue appears to have been joined upon the plea in bar, but some sort of a hearing was had and the plea was overruled. Assuming that it was proven or admitted that in the actions for rent the defense of eviction was unsuccessfully set up, it does not follow that the plaintiff may not maintain the present action for, as shown in Pilipo v. Scott, 21 Haw. 609, the defense of eviction may have failed for the very reason that the lessee had never obtained possession of the demised premises or the part as to which eviction was claimed. Under the second count of her amended complaint the) plaintiff claims damages for alleged failure of performance on the part of her lessors resulting in the inability on her part to obtain possession of the premises, but in disaffirmance of the lease. This is a new right of action as
In an action for breach of a covenant for quiet enjoyment the rent paid in advance and the value of the unexpired term over and above the rent reserved may be recovered. Ante p. 354. But where, as here, the contract is repudiated on failure of consideration or performance the measure of damages is generally the amount of money which has been paid under it, with interest. See Kopelman v. Gritman, 136 N. Y. S. 296; Goldman v. Dieves, 159 Wis. 47, 50; Riverside Co. v. Rusted, 109 Va. 688; Tyler v. Bailey, 71 Ill. 34. The question whether any recovery can be had in respect of the amounts for which judgments were recovered, since the validity of the judgments is conceded
The application- of the statute of limitations differs also in the two classes of cases. An action for damages for the breach of covenant must be brought within six years from the date on which the breach occurred, whereas an action which proceeds in disaffirmance of the contract may be commenced within six years of the date of its repudiation by the plaintiff. And the repudiation need not occur immediately upon breach but may be made at any time during the continuance of the contract. The defendants in' this case cannot say that the lease is not in force for they have continued to demand rent under it. We think the rule applicable to the failure of performance under a continuing-contract applies here, and that the statute has not run against the action based, as it is, on the disaffirmance of the contract as the disaffirmance has only just now been made, though the recovery would be limited to damages sustained within the period of limitation. See 25 Cyc. 1104, 1106; Richter v. Land Co., 129 Cal. 367, 375; McCay v. McDowell, 80 Ia. 146; Nelson v. Traction Co., 142 S. W. (Tex.) 146; Whitley v. Whitley, 80 S. W. (Ky.) 825.
The continuous litigation between these parties with respect to this lease and their rights under it has taxed the patience of this court. It is high time that those rights were settled and the litigation brought to an end. The disadvantageous and complicated nature of the plaintiff's tenancy has been adverted to in prior decisions of this court, but this case seemingly presents an opportunity which, if taken proper advantage of by the litigants, may enable the court to decide all disputed facts and definitely pass upon the legal questions involved.
The exceptions are overruled.