Dewey v. Gray, Whipply & Co.

Heydeneeldt, Justice. When this case was here before, the Court decided that if a landlord entered upon his tenant’s premises without his consent, before the expiration of the lease, and re-let the premises to another, such entry and re-letting discharged the tenant from his covenant, except as to such part of the rent as had accrued at the time of the re-entry, which the landlord was entitled to recover. The latter portion of that decision is in abrogation of one of the plainest principles of law; and if this case was a new one, I would not hesitate to overrule it. But legal rules deprive us of the power to do so. The decision having been made in this case, it has become the law of the case, and is not now the subject of revision. This question was very fully argued and considered by the Supreme Court of the United States, in the case of the Washington Bridge Co. v. Stewart, et al., 3 Howard, 413; and although in that case the question raised on the record, was the important one of jurisdiction, it was notwithstanding held that the previous decision of the Court in the same case, was conclusive of the rights of the parties, and not revisable. But even if the point relied on was the subject of adjudication at this time, it would be insufficient to procure a reversal of the judgment in the present case. The verdict of the jury being for the whole amount of the sum claimed by the plaintiff, was a conclusive finding against the fact alleged of re-entry and re-letting. The charge, therefore, however erroneous it may have been, worked no injury to the defendants. The next question is, whether the Court erred in refusing a new trial. It is insisted on behalf of the appellants, that the evidence proved clearly that there was a re-entry and a re-letting, and collection of rents by the plaintiffs. There was but one witness on this point; and upon sifting his evidence closely, we are of opinion that there was no re-entry or re-letting, although the witness may have entertained that opinion. One of the parties to whom it is alleged there was a re-letting, was one of the original lessees; he was in possession at the time of the pretended re-letting, and seems to have continued in undisturbed possession of the premises. All of the language attributed by the witness [378] to the plaintiffs, shows clearly, that it was not his design to reenter or re-let the premises, or to release his rights against the original lessees. The money paid him by the witness was receipted for on account of rent, and as the witness was taken into joint occupation by Butler, one of the original lessees, it was no business of the plaintiff to object to the source from whence the payments came. His account, as stated, shows that he credited the lessees for payments; and unless other payments were proved, it is a fair and necessary presumption that the credits were for the payments made by the witness and Butler. This disposes of all the questions of any consideration raised by the defence; and the judgment is consequently affirmed with costs.