Hertzberg v. Beisenbach

Delany, J. Com. App. The second and third assignments of error will be considered together. The second assignment does not present with perfect accuracy the findings of the court. The findings were as follows: “ The court finds that plaintiff, after the expiration of one year, took possession of the leased premises under a proffer made by the defendant that he, the plaintiff, could occupy five years from that date at the same rent stipulated in the first instance. The court, therefore, is of opinion that the plaintiff, acquiescing in the proffer so made, and taking possession of the place and still occupying the place under the subsequent arrangement, is estopped from making any claim for damages he may have had.” Our opinion is that the court did not err. The finding of fact is fully supported by the evidence; and the court deduced- from it the correct conclusion. The fourth assignment does not correctly represent the action of the court. The evidence that the preceding tenant had wrongfully held over, and thus had kept the plaintiff out of possession, was admitted probably because no objection was made to it on the trial. But the court did not hold that the plaintiff’s right of action was against [265] the preceding tenant, rather than the defendant. From the language of the finding it would seem that the court regarded the plaintiff’s cause of action as being against the lessor rather than the tenant who held over. Upon this subject there seems to have been some diversity of opinion. The courts of Hew York hold that a lessee who is kept out of possession by a preceding tenant of his lessor holding over has his remedy against the tenant and not against the lessor. Gardner v. Keteltas, 3 Hill (N. Y.), 330. This rule is followed in quite a number of the states. We greatly prefer the English doctrine, which is that he who lets, agrees to give possession; and when the breach assigned was that the defendant did not give the plaintiff possession, it was held that an action could be maintained by the lessee against the lessor. Coe v. Clay, 5 Bing., 440. The correct rule is thus clearly stated by the supreme court of Alabama: “We hold that when there is a contract of lease, and no stipulations to the contrary, there is an implied covenant on the part of the lessor that when the time comes for the lessee to take possession under the lease, according to the terms of the contract, the premises shall be open to his entry. In other words, that there shall be no impediment to his taking possession. But this implied covenant or agreement does not extend beyond that time. If after the time when the lessee is entitled to have the possession, according to the terms of the contract, a stranger trespass on, or take possession and hold, this is a wrong done to the lessee, for which the lessor is in no way responsible. And this is the rule whether the trespass is committed before or after the lessee obtains actual possession. The lessor’s covenant extends no further than to guaranty that he had authority to make the lease, and that the premises will be open for occupancy when the contract gives to the lessee the right to enter.” King v. Reynolds, 67 Ala., 233. See, also, Hays v. Porter, 27 Tex., 92. Our opinion is that the judgment should be affirmed. Affirmed. [Opinion adopted May 19, 1885.]