Schwartzman v. Wilmington Stores Co.

Rodney, J.: The defendant contends the first count is based upon the demise itself and that the disclosure in the count that possession of the premises in question by the plantiff was never obtained defeats the cause of action. As indicating the necessity [9] of possession by the lessee, reliance is made on Section 4532 of Code of 1915, which provides: “Any contract, or consent, pursuant to which a tenant shall enter into, or continue in possession of lands, tenements, or hereditaments, under an agreement to pay rent shall be a demise.” It is contended that this act is exclusive and that entry into possession by the plaintiff, the lessee, is essential to an action on the demise which the defendant claims is the present action. A suit on a demise or lease itself can only we predicated or based upon the establishment of the relation of landlord and tenant and there is considerable authority to the effect that this relation cannot exist without an entry into possession by the lessee or tenant. Pittsburg, etc., R. Co. v. Thornburgh, 98 Ind. 201; Wilcox v. Bostick, 57 S. C. 151, 35 S. E. 496; Central Mills v. Hart, 124 Mass. 123; Caldwell v. Center, 30 Cal. 539, 89 Am. Dec. 131. In Williams v. Cleaver, 4 Houst. at page 458, the court says: “If the plaintiff .entered into possession of the farm * * * under an agreement *_ * * to pay * * * rent for it, then it was a demise and the legal relation of landlord and tenant existed between the parties from the time he so entered into the possession of it.” It is not clear, however, that the declaration is based upon the lease or demise. We are of the opinion that the statement in the declaration that a lease or demise was entered into forms not the real basis of the cause of action but is the mere recital of the origin of the plaintiff’s claim showing his right to the possession, and the failure to allow this possession constitutes the cause of action. There are two widely divergent views as to existence or nonexistence of an implied warranty on the part of the lessor to give possession of the demised property to the lessee, and the cases are in irreconcilable conflict. A few supporting the so-called English rule upholding the existence of the implied warranty are: Coe v. Clay, 5 Bing. 440, 130 Eng. Reprint 1131; Jenks v. Edwards, 11 Exch. 775; 156 Eng. Reprint 1045; Drury v. McNamara, 5 El. & Bl. 612, 119 Eng. Reprint 608; King v. Reynolds, 67 Ala. 229, 42 Am. Rep. 107; Herpolsheimer v. Christopher, 76 [10] Neb. 352, 107 N. W. 382, 111 N. W. 359, 9 L. R. A. (N. S.) 1127, 14 Ann. Cas. 399, and note. Among those repudiating the existence of the warranty are: Gardner v. Keteltas, 3 Hill (N. Y.) 330, 38 Am. Dec. 637; Cozens v. Stevenson, 5 Serg. & R. (Pa.) 424; Gazzolo v. Chambers, 73 Ill. 75; Sigmund v. Howard Bank, 29 Md. 324. It is unnecessary for this court to adopt either of these views, however, since all those repudiating the existence of the implied warranty of possession are based upon the fact that, at the time the possession of the lessee is to commence, the premises are in possession of a holding over tenant, and no case has been found which denies a right of action against a lessor who by his own act has installed a third person in the premises between the date of his agreement with the lessee and the time the lessee was to enter into possession. In Batton v. Bradley, 3 Houst. 215, the defendant agreed to let certain premises to the plaintiff at an agreed rental and in the agreement each were bound in the sum of $500 for the performance of the contract. Prior to the commencement of the term, the defendant sold the property and the action was for the breach of the agreement which was duly proved and put in evidence. The court held the action proper and the verdict was for the amount of the plaintiff’s loss and injury. The liability of a lessor to give possession to the lessee, however, does not occur at any period beyond the day when the possession was to be delivered, the liability being based on failure to give possession and not on quiet enjoyment. Hertzberg v. Beisenbach, 64 Tex. 262. The declaration alleges the plaintiff to have been entitled to possession on September 25, 1920, and alleges that: “After the making of the lease, to wit, during the month of September or the month of October, 1920, the defendant suffered and permitted some one else to take possession of the premises, * * * and thereby deprived the plaintiff of possession thereof.” .If this could be construed as alleging the action of the lessor in allowing a third person to have possession of the premises to [11] have taken place between September 1 and September 25, 1920, the count would be good, if it must be construed as alleging the act of the lessor subsequent to September 25th, the count is bad. It is a cardinal rule of pleading that everything is taken most strongly against the party pleading for it is to be presumed that the pleader has stated his case as strongly as he can. 1 Chitty 241, 521; Wells & Sappington v. Shrive’s Adm'r, 2 Houst. 345, 362; Fidelity Co. v. Van Dyke, 99 Ga. 542, 27 S. E. 709; Cincinnati, etc., R. Co. v. Smock, 133 Ind. 411, 33 N. E. 108; Bartlett v. Prescott, 41 N. H. 493; Apgar v. Glass Co., 92 N. J. Eq. 352, 113 Atl. 593. There being no rule of construction by virtue of which the court can conclude that the action of the lessor in depriving the lessee of the possession of the premises occurred prior to September 25, 1920, the date on which possession was to have been given, the demurrer to the first count must be sustained. The demurrer to the second count must also be sustained. It is obvious from an inspection of it that it is based upon a violation of quiet enjoyment and not of a right of possession. Under all the authorities for the maintenance of this action possession or occupancy by the lessee is held to be essential.