45 A.2d 785 | D.C. | 1946
The appellant brought an action for possession of real estate, alleging in its complaint that the tenant was violating an obligation of her tenancy by subletting part of the leased premises. At the trial plaintiff introduced evidence that defendant’s tenancy commenced in 1939 under a lease which had since been assigned to plaintiff and that defendant had paid rent to the plaintiff following such assignment, thereby acknowledging the landlord and tenant relationship. The president of plaintiff corporation testified that, upon assuming the managership of the property in April 1944, he inspected the premises and found them to be divided into three apartments and half a dozen single rooms that were being rented to various individuals, and that on July 26, 1944, he wrote the defendant demanding that she stop subletting the premises. He testified that plaintiff had never accepted rent in advance from defendant. The plaintiff also called the defendant who testified that she was operating a rooming business on the premises in question, and that she did not live there herself. She identified the persons occupying the various rooms and apartments. It appears from her testimony that some sixteen people resided on the two floors covered by this lease and that several had lived there for two or three years while others moved in and out every two or three months. At the close of the plaintiff’s evidence, the court granted defendant’s motion for a di.rected verdict. Plaintiff appeals, charging that the court erred in directing the verdict.
From a study of the record, we think plaintiff made out a case from which the jury could reasonably infer that the tenant had sublet a part of the premises and thereby violated her lease. Under these circumstances, we must hold that the trial court erred in taking the case from the consideration of the jury.
In ruling on a motion for a directed verdict, the trial court must consider the evidence of the party against whom the verdict is sought as true and must view it in
Here the lease provided that the tenant would use the premises for a dwelling and that she would not sublet the whole or any part of the premises without prior written consent of the landlord.
In directing the verdict the trial judge ruled not only that the evidence did not show subletting, but also that it did establish a waiver on the part of the landlord. With respect to the latter point, it is well established that the landlord may waive a breach of a condition in the lease by accepting rent in advance after knowing of the violation.
In our opinion the evidence was such that it warranted submission to the jury, upon proper instructions from the court, of the questions whether there was a breach of the condition against subletting and, if so, whether there was a waiver of such breach.
Reversed with instructions to award a new trial.
Birchall y. Capital Transit Co., D.C.Mun.App., 34 A.2d 624.
The lease had expired but the holding .over was .subject to the applicable conditions of the lease. Hampton v. Mott Motors, Inc., D.C.Mun.App., 32 A.2d 247.
Merritt v. Kay, 54 App.D.C. 152, 295 E. 973; Klein v. Longo, D.C.Mun.App., 34 A.2d 359.