LATIMER, Justice.
Plaintiff recovered judgment for the amount of rent due under the terms of a written lease. Defendant appeals and assigns seventeen errors upon which it relies for reversal.
These errors can be grouped under three general headings, namely: (1) The Court erred in construing the lease to relate only to a portion of the premises; (2) the Court improperly excluded evidence material to the defense of appellant, particularly with respect to eviction; and (3) the Court erred in holding the evidence admitted, together with that tendered, did not establish an eviction by the plaintiff.
Plaintiff commenced the action by the usual pleading for breach of contract for non-payment of rent. Defendant’s answer admitted the execution of a lease, the nonpayment of rent, and attached a copy of the lease to the answer. The copy of the lease attached described the leased property as
all
of Lot 47, Plat B, North Ogden Survey, which covered considerably more property that the service station involved in plaintiff’s complaint. Affirmatively, defendant alleged an eviction by the plaintiff. No facts were set up in the answer to show what defendant claimed to justify the pleaded conclusion of eviction. We must, however, accept this as an issue since plaintiff failed to raise any objection to the manner in which it was pleaded.
Plaintiff replied, to the affirmative allegations of the answer, denied generally the eviction, denied that the property leased included
all
that was described and referred to in the^ lease, and alleged that the lease was ambiguous and uncertain. He further pleaded facts which indicated the parties did not intend to lease all of the property described in the lease.
The issues presented to the trial court by the pleadings were these: Did the lease cover all or only a portion of the premises described in the lease? Did the plaintiff interfere with defendant’s right to quiet and peaceful enjoyment of
all
the premises as described in the lease or part of the premises as set forth in plaintiff’s reply?
By reference to the pleadings, the statement of counsel for both parties, the testimony proffered and rejected, and the briefs of the parties before this court, it is evident the real issue in the case is the question of what property was leased.
Plaintiff’s contention from the start of the action is well stated in this quotation from his brief:
“It should constantly be kept in mind that the confectionery store was not station No. 798 and that the dance hall was not station No. 798 and that appellant had nothing to do with the dance hall (Bill of Exceptions page 18) and no account of income therefrom was ever made to appellant incident to its construction and appellant is not sure of the date of its construction guessing at 1940 or 1941 and all this despite witnesses’ frequent visits to station No. 798 and continuance of gasoline sales by appellant to respondent into 1943.”
On the other hand, defendant contends the lease covered
all
of Lot 47, Plat B, including all of the building in dispute.
When the trial of the action commenced the trial judge brushed aside the question as to what property was intended to be leased and directed defendant to proceed with its defense of eviction. However, when the defendant attempted to introduce the facts upon which it relied for eviction, it was evident the testimony for the most part referred to that portion of the premises which plaintiff claimed was not leased.
The court ignored this issue in the trial of the matter because plaintiff had operational control of the premises; nevertheless, in its findings of fact a specific finding was made that the defendant only leased that portion of the premises identified as station No. 798. This was a material finding and there is no evidence in the record to justify it.
The question as to what property was leased is one of the controlling questions in the case. Therefore, it becomes necessary to briefly discuss who had the burden of proving this issue. The leasing clause was unambiguous and plaintiff, having alleged that the lease did not express the true intent of the parties, it was his burden to establish the facts. The plaintiff having failed to carry this burden, and the record being silent, the court erred in making a finding of fact not supported by the record. This error was prejudicial to the rights of the defendant. In the event this action is retried, and if in order to properly present this issue there is required a prayer for reformation of the lease and pleadings in support thereof, the trial court should permit appropriate amendments.
The next group of errors relied on by defendant raises the correctness of the court’s ruling on eviction. When the defendant attempted to prove the issue of eviction the court announced the ruling that because the plaintiff remained in operational control of the premises, defendant could not prove an eviction regardless of the acts of plaintiff. During the discussion on the admissibility of this evidence is the time in the trial of the action when loose talk of possession clouded the issue.
When the pleadings are considered as a whole, it is admitted by the plaintiff that defendant had possession of part of the premises, either actually or constructively. Suing on a lease and alleging non-payment of rent, assumes defendant had some rights in the premises. The pleading of an eviction presupposes a possession, either actual or constructive, as the term is ordinarily used to indicate acts which constitute an interference with peace
ful possession and enjoyment by one claiming under a paramount title. While defendant in its answer did not allege whether or not it claimed actual eviction or constructive eviction, the pleading was all-inclusive. Black’s Law Dictionary defines both and it will be noted each includes the element of possession:
“Actual eviction is an actual expulsion of the tenant out of all or some part of the demised premises; a physical ouster or dispossession froml the very thing granted or some substantial part thereof. * * *
“Constructive eviction. * * * With reference to the relation of landlord and tenant, there is a ‘constructive eviction’ when the former, without intent to oust the latter, does some act which deprives the tenant of the beneficial enjoyment of the demised premises or materially impairs such enjoyment. * * *”
A general denial of eviction does not in and of itself deny a lack of possession. On the contrary, it only traverses the-allegations that the plaintiff did interfere with peaceful possession or quiet enjoyment. Had plaintiff intended to raise other issues he should have pleaded his specific defenses. In his reply plaintiff in at least two paragraphs alleges defendant occupied the premises. Thus considering only the pleadings, it is difficult to determine how lack of possession by the defendant was ever put in issue.
Possession not being put in issue by the pleadings, the court should have permitted defendant to proceed with the evidence of eviction.
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LATIMER, Justice.
Plaintiff recovered judgment for the amount of rent due under the terms of a written lease. Defendant appeals and assigns seventeen errors upon which it relies for reversal.
These errors can be grouped under three general headings, namely: (1) The Court erred in construing the lease to relate only to a portion of the premises; (2) the Court improperly excluded evidence material to the defense of appellant, particularly with respect to eviction; and (3) the Court erred in holding the evidence admitted, together with that tendered, did not establish an eviction by the plaintiff.
Plaintiff commenced the action by the usual pleading for breach of contract for non-payment of rent. Defendant’s answer admitted the execution of a lease, the nonpayment of rent, and attached a copy of the lease to the answer. The copy of the lease attached described the leased property as
all
of Lot 47, Plat B, North Ogden Survey, which covered considerably more property that the service station involved in plaintiff’s complaint. Affirmatively, defendant alleged an eviction by the plaintiff. No facts were set up in the answer to show what defendant claimed to justify the pleaded conclusion of eviction. We must, however, accept this as an issue since plaintiff failed to raise any objection to the manner in which it was pleaded.
Plaintiff replied, to the affirmative allegations of the answer, denied generally the eviction, denied that the property leased included
all
that was described and referred to in the^ lease, and alleged that the lease was ambiguous and uncertain. He further pleaded facts which indicated the parties did not intend to lease all of the property described in the lease.
The issues presented to the trial court by the pleadings were these: Did the lease cover all or only a portion of the premises described in the lease? Did the plaintiff interfere with defendant’s right to quiet and peaceful enjoyment of
all
the premises as described in the lease or part of the premises as set forth in plaintiff’s reply?
By reference to the pleadings, the statement of counsel for both parties, the testimony proffered and rejected, and the briefs of the parties before this court, it is evident the real issue in the case is the question of what property was leased.
Plaintiff’s contention from the start of the action is well stated in this quotation from his brief:
“It should constantly be kept in mind that the confectionery store was not station No. 798 and that the dance hall was not station No. 798 and that appellant had nothing to do with the dance hall (Bill of Exceptions page 18) and no account of income therefrom was ever made to appellant incident to its construction and appellant is not sure of the date of its construction guessing at 1940 or 1941 and all this despite witnesses’ frequent visits to station No. 798 and continuance of gasoline sales by appellant to respondent into 1943.”
On the other hand, defendant contends the lease covered
all
of Lot 47, Plat B, including all of the building in dispute.
When the trial of the action commenced the trial judge brushed aside the question as to what property was intended to be leased and directed defendant to proceed with its defense of eviction. However, when the defendant attempted to introduce the facts upon which it relied for eviction, it was evident the testimony for the most part referred to that portion of the premises which plaintiff claimed was not leased.
The court ignored this issue in the trial of the matter because plaintiff had operational control of the premises; nevertheless, in its findings of fact a specific finding was made that the defendant only leased that portion of the premises identified as station No. 798. This was a material finding and there is no evidence in the record to justify it.
The question as to what property was leased is one of the controlling questions in the case. Therefore, it becomes necessary to briefly discuss who had the burden of proving this issue. The leasing clause was unambiguous and plaintiff, having alleged that the lease did not express the true intent of the parties, it was his burden to establish the facts. The plaintiff having failed to carry this burden, and the record being silent, the court erred in making a finding of fact not supported by the record. This error was prejudicial to the rights of the defendant. In the event this action is retried, and if in order to properly present this issue there is required a prayer for reformation of the lease and pleadings in support thereof, the trial court should permit appropriate amendments.
The next group of errors relied on by defendant raises the correctness of the court’s ruling on eviction. When the defendant attempted to prove the issue of eviction the court announced the ruling that because the plaintiff remained in operational control of the premises, defendant could not prove an eviction regardless of the acts of plaintiff. During the discussion on the admissibility of this evidence is the time in the trial of the action when loose talk of possession clouded the issue.
When the pleadings are considered as a whole, it is admitted by the plaintiff that defendant had possession of part of the premises, either actually or constructively. Suing on a lease and alleging non-payment of rent, assumes defendant had some rights in the premises. The pleading of an eviction presupposes a possession, either actual or constructive, as the term is ordinarily used to indicate acts which constitute an interference with peace
ful possession and enjoyment by one claiming under a paramount title. While defendant in its answer did not allege whether or not it claimed actual eviction or constructive eviction, the pleading was all-inclusive. Black’s Law Dictionary defines both and it will be noted each includes the element of possession:
“Actual eviction is an actual expulsion of the tenant out of all or some part of the demised premises; a physical ouster or dispossession froml the very thing granted or some substantial part thereof. * * *
“Constructive eviction. * * * With reference to the relation of landlord and tenant, there is a ‘constructive eviction’ when the former, without intent to oust the latter, does some act which deprives the tenant of the beneficial enjoyment of the demised premises or materially impairs such enjoyment. * * *”
A general denial of eviction does not in and of itself deny a lack of possession. On the contrary, it only traverses the-allegations that the plaintiff did interfere with peaceful possession or quiet enjoyment. Had plaintiff intended to raise other issues he should have pleaded his specific defenses. In his reply plaintiff in at least two paragraphs alleges defendant occupied the premises. Thus considering only the pleadings, it is difficult to determine how lack of possession by the defendant was ever put in issue.
Possession not being put in issue by the pleadings, the court should have permitted defendant to proceed with the evidence of eviction. During the course of the trial, defendant introduced or offered evidence on converting the garage to a dance hall, locking up the showroom, and discontinuing the purchase of gasoline. Without detailing all of the evidence the court permitted some to be introduced and rejected some. Part of the evidence tendered by defendant and rejected by the court is as quoted herewith:
“Mr. Huggins: At this time, if the Court please, we offer to- show by this witness that Wayne Barker, the plaintiff, was in possession of this property covered by the lease, and that up until the early part of 1943 he operated it as a service-station, where gasoline, oils, greases and other motor-vehicle fuels and accessories were sold to the public
generally; that during the early part of 1943 the nature of the operation of the business upon these premises was converted and changed, without the consent or approval or knowledge of the defendant lessee, except from what they observed, from the business of a service-station, where the defendant’s or a similar concern’s products were sold, to a dance-hall; that the portion theretofore used as a display room and storage roomi for the defendant’s products was converted — there was a display room of the defendant’s products and a store-room for merchandise usually and commonly used in connection with a service-station were converted for use in connection with a confectionery and dance-hall, and that without the knowledge, consent, or approval of the defendant; that the keys at that time were in the possession of the plaintiff, lessor; that he has retained them ever since; that we have not had possession since that time, but that the plaintiff in this suit has had free and exclusive possession of the property covered in the lease and all parts of it, since the early part of 1943, and we have been excluded therefrom.”
Had the witness been permitted to testify to that part of the tendered evidence which indicates a conversion from a garage to a dance-hall, and a conversion of the display and storage rooms, a question of fact would have been presented showing a change in the character of the premises. This evidence in conjunction with that as to what was intended to be leased would then be material to determine whether there was an eviction from what was really leased. The lease definitely shows the premises were leased for the purposes of a service station, and to convert essential parts, if intended to be leased, such as the garage to a dance-hall, would be a substantial interference with peaceful possession and enjoyment.
At the time the offer was made, it was immaterial that no showing had been made as to plaintiff’s capacity when he was left in control of the premises. Plaintiff covenanted with defendant that it should have peaceful possession, and enjoyment, of the premises. He had knowledge of defendant’s rights in the premises and had knowledge that the very lease he was to found his rights on prescribed that he would not interfere with defendant’s peaceful possession and enjoyment. If he and the defendant agreed to leave him in control of the place and permit him to run the station, he
cannot breach his own covenant by altering the premises so as to destroy their use for the purposes provided in the lease. If he claims the right to do this then he must allege and prove it.
It is not intended by this decision to express any opinion as to the admissibility of all of the evidence tendered or to determine the weight to be given it. A decision on the question of what property was intended to be leased will determine the materiality of any evidence touching on eviction. These are matters which can be dealt with in subsequent proceedings, if any.
The judgment is reversed with direction to grant a new trial with permission to amend pleadings upon request of either party. Costs to appellant.
McDONOUGH, C. J., and WOLFE, concur.