Browder-Manget Co. v. Edmondson

Hill, O. J. (After stating the foregoing facts.) The authorities on the question as to whether it is the duty of the lessor to deliver possession of the leased premises, or whether it is the duty of the lessee to demand possession at the time specified in the lease, are in conflict. The English rule seems to be that the duty is upon the lessor to notify the lessee that the leased premises are ready for his possession, and to “clear the possession” for the lessee. In the case of Coe v. Clay, 5 Bingham, 440, it is held that he who lets agrees to give possession, and if he fails to do so, the lessee may recover damages against him. The American courts generally hold that it is the duty of the lessee to take possession of the leased premises when the lease begins, and if possession is wrongfully withheld, the lessee may repudiate the contract and the lessor can not recover rent, as the date fixed for possession is of the essence of the contract of lease. Gear, L. & T. §163. We think the conflict between the authorities is more apparent than real, and that the true rule on the subject is that where the lease contains no stipulation to the contrary, there is an implied covenant on the part of the lessor that the premises shall be open to entry by the lessee at the time fixed by the lease for him to take possession, and if possession is then wrongfully withheld from the lessee, he can maintain an appropriate action against the lessor, or can at his option repudiate the contract and bring an action for damages for its breach. 24 Cyc. 1049, and cit. In other words, the lessee has the right of entry at the time fixed by the lease for him to take possession, but he must do something towards, exercising this right. He must go to the leased premises and see whether they are ready for his possession, and see whether there is any obstacle in the way of his taking possession. He has the right to assume, and to act upon the assumption, that the premises will be [847] ready for him to take possession at the time specified in the lease. If he finds that the leased premises are still in the possession of the lessor, or in the possession of a third person, and he is refused possession,, he is not obliged to bring an action to obtain possession of the premises, but he may repudiate the contract and sue -the lessor for its breach. An entry by the lessee, however, is not necessary to give effect to a lease contract. The lease takes effect upon its execution, and while the possession and enjoyment of the leased property is a condition,precedent to the right of the lessor to recover the rent, yet, before the lessee can repudiate the contract on the ground that possession and enjoyment are wrongfully withheld from him, he must do something to show that he desires possession. After the execution of the contract he can not remain wholly inactive in reference to possession and justly claim that he is excluded therefrom by the wrongful act of the lessor. Apply these general rules to the facts of this case. The time for the lessee to take possession under the lease as amended by consent was April 15. The lessor had by implication notified him that on that day the premises would be vacated by the Georgian Company and would be ready for him. The lessor was not required to give him notice on April 15 that he could take possession of the leased premises. Any notice then would have been simply the reiteration of information given by the lease. He had the right to assume that he could do so, and it was his duty to go and take possession, and if he saw that the premises were not then ready for his possession, he should have called the attention of the lessor to the matter and demanded of him that possession be given. If he had gone on April 15 to take possession of the rented premises, he would have found the property of the Georgian Company occupying the space which had been rented to him. If the property was of such character as could be readily removed, and indicated a mere casual and temporary occupancy, it would have been his duty to request his lessor to have the property removed. He did not do this. He made no request that the property of the Georgian Company be removed from the space which was leased to him. He did not even object to its being there or call the attention of the lessor to the fact that it was occupying his space, and he could not have repudiated his contract unless it was apparent that the lessor or someone else intended to exclude him from the [848] possession, or that the occupancy of the leased premises was of such a character as to justify the conclusion that possession was wrongfully withheld. The occupancy by the Georgian Company of the space rented by him was equivocal in character. It was subject to explanation, and if it was shown, as above intimated, that this furniture could have been readily and speedily removed and was no serious obstacle to possession and was not intended as an impediment, he could not set up the fact that it was oecupjdng the space rented by him, as a reason of sufficient materiality or gravity to justify him in repudiating his contract. We do not think the court, under the facts of this case, was warranted in holding, as matter of law, that possession was wrongfully withheld by the lessor or by the Georgian Company from the lessee, and that, therefore, he was entitled to repudiate his contract, but this ques-tion should have been submitted to the jury. Judgment reversed.