16 Haw. 309 | Haw. | 1904
OPINION OF THE COURT BY
Tbe plaintiff brought assumpsit claiming $4,467.20, rent due and payable on two leases from himself to the defendant, one dated April 10, 1888, demising certain land on Nuuanu street in Honolulu for fifteen years from May 1, 1888, at a monthly rental of $30, and the other dated January 17, 1890, demising another parcel; on the same street for fifteen years from January 1, 1890, at a monthly rental of $130. The rents claimed are $4,160 on the first lease from January 1, 1900, to February 28, 1902, and $307.20 on the second lease for the years of 1900' and 1901. The plaintiff obtained a verdict for the sum claimed by him. The case comes up on the defendant’s exceptions to three rulings concerning evidence made during the trial, the-latter of which only is relied on in argument, namely, allowing' the defendant to put in evidence a declaration or certificate-dated June 26, 1900, by J. P. Mendonca to the effect that he knew that the pieces of land on Nuuanu street, described in &
The facts shown by the evidence are that about January 1, 1900, the premises of the defendant upon the land demised to him on leases declared upon were burned by order of the board of health at the time of the plague visitation. The wooden buildings on the land leased to defendant were burned January 10, the contents of a stone building in the rear having been burned December 31. The premises were “quarantined from December until May,” (defendant’s evidence, pp. 30, 51.) The plaintiff declined rent for January and February on the ground that he advised a new lease which he said he would give, and that it would not be worth the defendant’s while to build brick buildings on land within the fire limits requiring brick buildings for the short time, five years, remaining of his leases. The defendant’s brief says that “thereupon and until the 23rd day of August, 1901, ineffectual attempts were made to procure the execution of a lease.” From the evidence, however, it appears that after many discussions between the parties concerning rental for a new lease, a form of lease was finally drawn up by the plaintiff and submitted to the defendant on November 9, 1900, which was submitted by the defendant to his attorney, Mr. Castle, who noted in pencil changes proposed by him to make the monthly rental of $300 named therein $180 for the residue of the terms of the old leases and to modify the condition therein expressed that the lessee should conform to the board of health regulations. The defendant says that the last talk he had with the plaintiff on the subject of a new lease was in
“Dear Sir:—
With regard to the matters now standing between L. Ahlo •and yourself, I have to suggest the following:
Eirst. Eire Claims: Ahlo is willing to take 5-27 of the ■amount awarded for the buildings erected by him as the full amount of his claim, and whether he makes a new lease or the ■old lease is cancelled, he is not to be liable for any rents from*314 the time of the fire to the date upon the cancellation of that lease.
Second. To make a lease of the premises now or recently held by him under lease from your principal of forty-five years, at a monthly rental of $225, terms and, conditions to be practically similar to those of the old leases, except, of course, he is to erect good fire proof buildings.
Third. Should you succeed in settling with Ahi so that Ahlocould lease the entire block between Chaplain lane and Pauahi on Nuuanu street, he will pay $310 per month.
Kindly let me hear from you on this matter at your earliest convenience.”
August 23, 1901, Castle wrote to Bolte as follows:
“Dear Sir:—
With reference to the matter of lease with L. Ahlo, I desire-to say that having had another conference with him, and saying-in my opinion, there is no hope of meeting you on the subject of rent, he has decided to abandon the matter entirely, and suggests that the present leases be cancelled upon even terms; that he will execute the cancellation of the leases at any time you desire, but, of course, reserving to himself his interest in the award for losses by fire by the fire claims commission.”
There is no evidence of any answer to either of the above letters. Bolte says with reference to the tender of rent in January that he “advised Ahlo to cancel his two leases and sit still until the plague is over, and then come and talk new leases business,”' (p. 92). He also says that in his draft of a lease he left the-, lessor’s name blank “because I didn’t know who the lessor would be,” evidently referring to the fifty year lease to Mendonca,. whose agent Bolte was (pp. 86 and S9).
The defense is (1) that the plaintiff’s course amounted to a waiver of rent and of a formal surrender of the lease; (2) that, the lease to Mendonca of fifty years gave him the rental, precluding the plaintiff from claiming it; and (3) that the plaintiff, by inducing the defendant not to erect temporary buildings on the land by promising him a new lease, by refusing rent for January and February and making no demand for it until August of the following year, and by leasing the land to another,,
We are aware of no rule which precluded the plaintiff from showing the arrangement between himself and his lessee, or of any obligation resting upon him to inform Ahlo of the transaction. * By reason probably of the same person acting as agent for the plaintiff and his lessee, Mendonca, the plaintiff was not precluded by his lease to Mendonca from giving the defendant the lease he offered in November. A grant of the reversion, unless otherwise agreed, would give the grantee the right to-future accruing rent, but the grantee may agree that the grant shall not carry the rent. Burden v. Thayer, 3 Metcalf 76; Harmon v. Flanagan, 123 Mass. 288. The exception to the introduction of the certificate is not sustained.
The question of the implied surrender and acceptance of the surrender was for the jury under appropriate instructions which were given by the court. The instructions which the court gave, to which the defendant excepted, were based upon the theory that there was no estoppel in the case. The instructions for the defendant which the court refused were based on the theory that there was evidence on which estoppel could be found. Looking-solely at the defendant’s evidence we are unable to discover in the case an element of estoppel. The proposal, offer or promise by the plaintiff to give a new lease and his advice to the defendant not to erect buildings on the premises under his old lease did not justify the defendant in relying upon getting a lease on such terms as he should desire. There was no definite promise
The exceptions are overruled.