Vumbacco v. Papallo

Beach, J. By the common law the tenant under a deed poll was not estopped to deny the title of his landlord. “And the reason of this is, for that in every contract there must be quid pro quo, for contractus est quasi actus contra actum; and therefore if the lessor hath nothing in the land, the lessee hath not quid pro quo, nor anything for which he should pay rent.” 1 Co. Litt. (Ed. 1853) Sect. 58, 47 b. But, “if the lease be made by deed indented, then both parties are concluded.” Id. In the latter case, the lessee’s seal imported a consideration which shut his mouth. The modern rule regards the possession of the premises as the consideration which, being retained, shuts the tenant’s mouth from controverting the title under which he acquired possession. 1 Tiffany, Landlord & Tenant, § 78, p. 500; 35 Corpus Juris, p. 1239, § 586. Thus the tenant cannot deny the landlord’s title so long as he retains possession acquired under the lease, but the estoppel continues no longer than the possession, provided the possession is surrendered to the lessor. “While the protection of landlords is reasonably insured, by the rule before-mentioned, it has never been carried so far in disregard of the rights of the tenant, as to operate an absolute estoppel against his claim of title. The object of it being accomplished, by the . . . restoration of possession to the landlord, or by any fact dissolving the rule above-mentioned, the rela *566 tion between them is functus officio; and the former tenant may controvert the title under which he held, without any embarrassment, except so far as a presumption may be derived from his implied recognition of such title.” Camp v. Camp, 5 Conn. 291, 301; Thomas v. Young, 81 Conn. 702, 71 Atl. 1100. See also the collection of cases under the citations from 35 Corpus Juris and 1 Tiffany, Landlord & Tenant, supra. As to the surrender of possession by the defendant, the plaintiff’s claims of fact made at the trial allege that the defendant vacated the premises about September 1st, 1923, and notified the plaintiff that he was through with the lease and had tom up the same and intended to pay no more rent and was no longer bound by the lease; and this action brought November 3d, 1923, is not an action for the one or two months’ rent then due under the lease, but an action for $1,000 damages for breach of the lease, in which the plaintiff claimed and has been awarded damages covering the whole of the rent reserved for the entire balance of the term. This evidences a termination of the lease according to its terms, and a complete surrender of possession by the defendant, which entitled him, in defense of an action for compensatory damages, to offer evidence tending to show that the plaintiff was not damaged because she had no right to collect rent for the balance of the term. The court erred in rejecting the evidence of the witnesses, Leo Weisleder and Ruth E. Payne, and the exhibits offered in connection therewith. This testimony and these exhibits tended to prove that the record title to the premises was not in the plaintiff, and that the premises had been sold by order of the Court of Probate to a third party during the continuance of the unexpired'term of the lease. With this evidence *567 excluded there was, of course, no evidence of false representations as to ownership, still less of any fraudulent misrepresentations, before the jury. The question of novation by acceptance of Mattese as tenant in place of the defendant was left to the jury under instructions which were correct, under the conditions created by the erroneous rulings on evidence; and, assuming that the plaintiff had title, the charge as to the measure of damages was not prejudicial to the defendant. There is error and a new trial is ordered. In this opinion the other judges concurred.