Okie v. Person

23 App. D.C. 170, 1904 U.S. App. LEXIS 5242

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 19, 1904
• Docket: No. 1375
• Status: Published

Opinion

Mr. Justice Morris

delivered the opinion of the Court:

1. It is contended by the appellant in the first place that if was error in the trial court to admit evidence of the conversation betunen the appellant and the appellee before the execution of the lease, under the guise of explaining ambiguity in the lease. But it is very clear to us that there was ambiguity in the lease,, latent ambiguity, which oral testimony was admissible to remove; and that the testimony which was admitted was of a character to remove the ambiguity. There was no patent error in the lease. The expression, “premises No. 3219 U street,” might or might not be sufficiently definite to designate a specific piece of property. In a fully-built district of a city occupied by houses, and with the metes and bounds of each piece of property distinctly marked by walls and fences, a street number might be amply sufficient to designate with clearness and certainty what was intended to be conveyed by a lease or demise in uniting. But a street number affixed to a dwelling house situated as the property here in controversy was situated plainly does not import any such certainty. Where a dwelling house or residence is situated in the midst of a comparatively large tract of land, the nearest fence or hedge may ordinarily be presumed to be the proper inclosure of the premises, unless the contrary is in some way made to appear. Under the contentions both of the appellant and the appellee, there must have been some limit intended by them of the demised premises to the east. The apparent limit was the hedge which has been mentioned. It was entirely proper and competent for the defendant to show by the declarations of 'the plaintiff herself, if she made any such declarations, which it was properly left to the jury to determine, that the demised premises extended to the hedg’e. No better testimony was available than these declarations. Strangely enough, notwithstanding that there were windows on the east wall of the dwelling house and the limit of the demised premises to the east must certainly have been at some distance from the wall of the house, there is no attempt whatever on the part of the plaintiff to show what that limit was.

It is clear to us, therefore, that there was latent ambiguity in the lease; and the law is too well established to need citation of authorities that oral evidence is admissible to remove such ambiguity. We are of opinion that the evidence admitted was the best evidence of its kind for the purpose, and therefore that there was no error in the ruling of the trial court in this regard.

2. It is argued in the second place, on behalf of the appellant, that it was error to admit testimony to the effect that before the execution of the lease the appellant had stated that she might remodel the dwelling house. But, as she did not remodel the dwelling house during the time of the appellee’s occupancy, it is not apparent how this testimony, if immaterial and irrelevant, could have injuriously affected the plaintiff’s case. The testimony was relevant, however, in connection with the theory of a surrender of the property by the appellee and an acceptance of such surrender by the appellant for the purpose of such remodeling, and the consequent release of the appellee from the payment of rent during such process, if there was in fact any agreement to that effect, which it was also left to the jury to determine.

3. It is also argued that the evidence was objectionable which was given by the defendant at the trial in the court below to the effect that- on tbe day after the trial of this case before the justice of the peace, but before the expiration of the term of the lease, the defendant discovered that the plaintiff had stored lumber on the front porch of the house and other portions of the demised premises. This evidence was introduced for the purpose of showing that the plaintiff has accepted a surrender of the demised property; and it is alleged that it was error to admit it, because a surrender of demised property does not excuse from the payment of rent, even though the rent is payable in advance. The appellant’s authorities do not support her position. As stated in the American and English Encyclopaedia of Law, second edition, vol. 18, page 295, cited by the appellant in this connection, the settled law is that a surrender of the demised premises, accepted by the lessor, ends the relation of landlord and tenant; and, when the surrender is between rent days, the tenant is discharged from all liability for rent even for the period between the surrender and the last rent day, for the rent is not to be apportioned. It is true that upon accrued rents, even though payable in advance, a surrender has no effect. (See the same authority and cases cited in the notes.) But here the testimony of the plaintiff herself is to the effect that the defendant vacated the premises about August 1, 1902, at which time the defendant claims the surrender to have taken place and to have been accepted by the plaintiff. Now, whatever may have been the result of such surrender on the rent which was payable on July 20, 1902, it would certainly have the effect, if proved to the satisfaction of the jury, to discharge the liability of the defendant for the instalment to become due on August 20, 1902. And with respect to that instalment, at least, the testimony complained of was admissible.

4. The first instruction to the jury requested by the plaintiff and refused by the court was this: “The jury are instructed as a matter of law that the plaintiff is entitled to recover the sum of $83, with interest from August 20, 1902.” In view of the state of the evidence, this instruction would have been so palpably erroneous that it seems to require no discussion.

5. The second instruction requested by the plaintiff and also rejected by the court was this: “The jury are instructed as matter of law that the plaintiff is entitled to recover the sum of $83, with interest from August 20, 1902, unless they shall find from all the evidence that the plaintiff trespassed upon a portion of the land demised under the terms of the lease, and if they shall find as a matter of fact that there was a trespass on the part of the plaintiff, then as a matter of law they must ascertain the damage, if any, done to the possession of the defendant by reason of said trespass, and in ascertaining said damage they can only take into consideration the actual value of that portion of the premises trespassed upon by the plaintiff, or her agents, to the defendant, to be used by him in the manner contemplated by the lease, and after ascertaining such damage, if any, to de^ duct the same from the $83, and interest from August 20, 1902, and render a verdict for the plaintiff for the difference.”

This instruction, also, is so palpably erroneous, in view of the testimony and of the authorities on the subject, that extended notice of it is wholly unnecessary. There was testimony in this case, which the jury believed, tending to show an eviction of the defendant by the plaintiff from a very considerable part of the premises claimed to have been demised. Now, the law is that if a lessor enters and evicts a tenant wrongfully from a part of the demised premises, the eviction operates as a suspension of the entire rent until possession shall be restored. The lessor can not lawfully apportion his own wrong, and charge the lessee for the use and occupation of the portion which has been left to him. Washb. Real Prop. §§ 343-345; Christopher v. Austin, 11 N.Y. 216; Morris v. Kettle, 57 N. J. L. 218, 30 Atl. 879; Boyce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322; Sherman v. Williams, 113 Mass. 481, 18 Am. Rep. 522; Hayner v. Smith, 63 Ill. 430, 14 Am. Rep. 124; Skaggs v. Emerson, 50 Cal. 3; Edgerton v. Page, 20 N. Y. 281. The plaintiff, therefore, was not entitled to any such instruction as was here requested.

6. Objection is taken also to the first instruction requested on behalf of the defendant, and which was granted by the trial court. It was in these terms: “If the jury believe from the evidence that, prior to the expiration of the term mentioned in the lease, and after the surrender of the premises by the defendant, the plaintiff did any act indicating an intention -to accept such surrender and terminate the lease, then the plaintiff is entitled to recover nothing from the defendant subsequent to the date of such acts.” The mode of expression of this instruction is open to some criticism; but it is not apparent that there was any mistake as to its meaning. The legal purport of it is that the plaintiff was not entitled to recover any rent 'that accrued after the surrender of the property by the defendant, if that surrender was accepted by the plaintiff. Evidence of such acceptance might well be found, not only in what occurred at the lime, but likewise in any subsequent action or course of conduct of the plaintiff. Thus understood, and with the support of such evidence, the instruction was correct.

7. The last objection on behalf of the appellant is to the second instruction granted on behalf of the appellee. This instruction is in the following terms:

“If the jury believe from the evidence that, prior to the defendant’s surrender of the demised premises, the plaintiff or her agents took possession of any portion thereof by erecting structures of a permanent or temporary character thereupon, or by interfering with the defendant’s quiet enjoyment thereof, then the defendant is entitled to recover from the plaintiff such sum, not in excess of the sum of $150, as the jury shall believe constitutes the difference between the rent paid by the defendant for the period between the beginning of such use and occupation and July 20, 1902, and the reasonable rental value of the remainder of the premises which the defendant was permitted to quietly enjoy, together with such other special damages, if any, as the jury may believe that the defendant suffered by reason of the acts of the plaintiff or her agents in depriving the defendant of the quiet enjoyment of the whole of the premises demised.”

This instruction also is justly subject to some verbal criticism, and is not entirely free from obscurity. But no objection is taken to it on that ground. The objection to it is that no special damages could be allowed at all, since, as it is claimed by appellant, there was no evidence of special damage in tbe case, and no claim of any special damage in the defendant’s plea of set-off. But this objection involves a misapprehension both of the scope of the plea of set-off and of the tenor of the evidence in the ease. The set-off is “for damage accruing to defendant for breach of the covenant for quiet enjoyment, and amount due for use and occupation by plaintiff of demised premises,” and this claim is certainly broad enough to cover any damage accruing from the eviction, especially in a suit instituted before a justice of the peace, and wherein the decision is required to be, not in accordance with legal principles alone, but in accordance “with the equity and right of the matter” (Code, § 80). And there is ample evidence of special damage in the record, — as that the building operations were unusually protracted; that the garden in the rear was cut up by the passage thereon of loaded teams; that the appellee’s windows were darkened; that trenches were left unguarded, which made it dangerous for the appellee’s children to play near them, and that numerous other annoyances were caused to the appellee by such operations. These are all of them elements of special damage, which fully warranted the second instruction given to the jury on behalf of the appellee, and the instruction was as favorable to the plaintiff as she was entitled to have it.

The suit was one for rent. The substantial defense was the eviction of the defendant by the plaintiff from a large part of the demised premises and his practically compulsory surrender of the residue and of the whole property. There was ample testimony to go to the jury, tending to show such eviction and compulsory surrender, and we think that the rulings of tbe trial court thereon and upon the instructions requested were right and just. We find no error in them.

It follows that the judgment appealed from must be affirmed, with costs; and it is so ordered. Affirmed,