Trull v. . Granger

Gardiner, J. The contract in question was executed by *118 the defendants on the sixth day of September 1849, the term to commence on the first of May, 1850. The right of the plaintiff to the possession of the premises, was complete on the day fixed by the agreement for the commencement of the term. Such a right in presentí is all that is neces'sary to maintain ejectment, as an entry is not necessary. ( Taylor, Landlord & Tenant, 332; 2 R. S. 304, § 6; id. 306, § 25.) The section last cited provides, that it shall not be necessary for the plaintiff, in ejectment, to prove an actual entry under title, but it shall be sufficient for him to show a right to the possession of such premises at the commencement of the suit as purchaser or otherwise. In Gardiner v. Keteltas, 3 Hill, 332; it was held that ejectment could be maintained by a lessee before entry against a stranger in possession and wrongfully withholding it from the plaintiff; and for that reason, no action could be maintained against the lessor on his covenant, that the lessee should have the “ sole and uninterrupted use and occupation of the demised premises, from the day specified in the lease.” But a plaintiff is not driven to action of ejectment against the lessor who withholds possession. He may bring his action on the implied agreement of the landlord to give up the possession, or in case the demise is under seal, an áction on the case for the same injury. In Coe v. Clay, 5 Bingham, 440, it was held that as he who lets, agrees to give possession, and not merely the chance of a law suit, the lessee may recover damages, and is not driven to his ejectment. Both of the cases cited assume that ejectment will lie before entry; in other respects, they can not be reconciled, except upon the distinction between an express and implied agreement. In the case from Hill, the contract was express, that the lessee “should have the sole and uninterrupted use and occupation of the premises.” And it was held that the lessors were not liable for the wrongful holding over of the former tenant. In the case from Bingham, there was no express stipulation, but an undertaking im *119 plied from the letting; and it was held, that the former tenant having held over wrongfully, the lessor was liable. In both these cases it will be observed, that the injury arose from the tortious acts of third persons. In the present one, the lessors themselves denied the right, and refused to permit the plaintiff to occupy, in accordance with their own lease. In such cases it seems to me very obvious that the. lessee should not be driven to his ejectment, but should* be allowed to bring his action for the damages sustained. Under the code there can be no embarrassment, as to the" form of action. And whether it is brought upon the agreement, express or implied, or in tort for the violation of the duty arising from the relation of landlord and tenant, established by the lease, is immaterial. In either case the damages should be the same, and in neither should the lessor be permitted wrongfully to withhold possession of the demised premises, and then insist that the lessee should turn him out by an ejectment, as the only remedy. The rule of damages adopted in this case was correct if the action lies. The difference between the yearly value of the premises and the rent, was the true measure of damages. The judgment should be affirmed. All the judges except Morse, J., who did not hear the argument, concurring, Judgment affirmed.