Silveira v. Ahlo

16 Haw. 466, 1905 Haw. LEXIS 95

• Court: Hawaii Supreme Court
• Decided: January 31, 1905
• Status: Published

Opinions

OPINION OF THE COURT BY

FREAR, C.J.

(Hartwell, J., dissenting.)

The defendant asks for a rehearing in this case (decided ante p. 309) upon the ground “that questions decisive of the case were duly submitted by counsel and overlooked by the court” and “specifies the particular matters on which he relies” as follows:

“1st. That one of the questions in the case on which he relied and which he duly presented was that no rent could be recovered after the first day of June, A. D. 1900, because that the plaintiff on that date granted a reversion in the premises leased to one J. P. Mendonca by lease in praesenti, and that by operation of law the right to recover the rents thereupon passed to said Mendonca and that the plaintiff could not recover from said date;

“2nd. In case the rent did not pass with the reversion still no recovery could be had because the landlord having re-rented the premises the amount received on the Mendonca rent, being' larger than the amount sued upon, should be applied on the amount due from the defendant, and no recovery could be had after that date;

“3rd. That the instruction of the Court that the issue in the case was whether the lease had been surrendered and can-celled, was misleading, the witness Bolte having testified that the lease was to be cancelled before it was surrendered, but the case which was submitted to the jury under the instructions of both parties was a case of a surrender by operation of law and not the surrender testified to by Bolte, and that the instruction given by the Court of its own motion, duly excepted to, stating to the jury that the issue was whether the lease was surrendered and cancelled was misleading, and that whilst duly presented by counsel it has been overlooked by the Court.”

There appears no reason for granting a rehearing upon the second and third grounds, but we think there should be a rehearing upon the first ground.

The action is one for rent, and one question is whether the plaintiff can recover rent from the defendant after having made an overlease to one ktendonca. Two exceptions are brought here bearing upon this point. One is an exception to refusing to give an instruction to the jury, and the other is an exception to the admission in evidence of a paper signed by klendonca, in which he certifies that he is aware of the fact that the pieces of land covered by his lease are now under the leases (describing them) to the defendant; and further certifies that the said lease to him “was granted subject to the aforementioned three leases” to the defendant.

Our attention was directed particularly to the second of these exceptions, and the opinion of the court, so far as it bears upon this document relates to the question of its admissibility and of its bearing upon the question of surrender which also was involved in the case. The question raised by the exception to the refusal to give the instruction received little or no attention by us and is not referred to in the opinion. Defendant’s brief was perhaps a little blind upon these questions, but on the whole, after further examination, we are pf the opinion that both questions were duly presented and that the question of the effect of the document mentioned was not given due attention. Accordingly a rehearing is granted upon the first ground stated in the petition, which may be stated in the form of the following questions: (1) Would the words “subject to the aforementioned three leases” in a grant of a reversion (either by a deed which does or by a deed which does not, expressly or by implication, contain a warranty of title or right to convey) prevent the subsequently accruing rent from going with the grant? (2) If so, are there any facts in the present case which would prevent the new lessee, Mendonca, from being entitled to such rent?

Robertson & Wilder for plaintiff. Castle & Withington for defendant.