Frank Miller & Co. v. Lampson

Fenn, J. This is an action of summary process. The complaint was dated and served on the 24th day of August, 1894, and made returnable on the 30th day of August, 1894. By continuance the case came to the 8th day of September, — 437 — 1894, when the court, upon a verdict of the jury impaneled, rendered judgment in favor of the then plaintiff Lampson, who is the present defendant in error. The District Court of Waterbary to which this writ of error was brought, found no error, and rendered judgment in favor of the present defendant. The plaintiffs appeal to this court. The reasons of appeal are as follows :— “1. The court erred in deciding that no error had been committed by the magistrate on the trial of said action of summary process. “ 2. The plaintiffs claim that the magistrate who presided on the trial of said summary process erred in the several particulars pointed out by the plaintiff in 1ns bill of exceptions, which is made a part of the record in said summary process: and the plaintiffs say said District Court erred in sustaining the several rulings and decisions of the said magistrate, and in finding that no error was committed in the trial of said action of summary process.” The first exception is to the action of the jusfice court in overruling a plea in abatement alleging defective service, thereby holding that the city sheriff of Water bury was authorized by law to serve such process. There was no error in this: the parties to the action, and the justice to whom it was returnable, resided, and the premises in question were located, in the town of Waterbury. Such being the case, the city sheriff had power to make service. 8 Special Laws, 1. The complaint alleged a lease of the premises, made on the first day of June, 1894, for one month, entry under said lease, and notice on July 24th, 1894, to quit on or before August 20th, 1894. The plea in abatement having been overruled, the plaintiffs in error filed an answer containing two defenses, the first being a general denial. The second defense was as follows : “ The defendants say that they are occupying the premises in question by virtue of a lease from the plaintiff for the term of one year, from the first day of May, 1894, at a yearly rent of -$575, payable in equal monthly installments, — 438 — and that said lease has not yet expired.” The allegations of this defense were denied. For the sake of convenience, and of conformity to the language of the bill of exceptions, from which we shall have frequent occasions to quote, the plaintiffs in error will hereinafter he called the defendants, and the defendant in error the plaintiff. The defendants having filed their answer to the complaint, and the plaintiff his reply thereto, the record states: “ The defendants thereupon requested that a jury might be summoned to try the issues of fact formed by the pleadings, without being required to enter into any bond or recognizance for the payment of costs. The court decided that the jury might be summoned, but that the defendants should enter into a bond with surety to pay the costs, as required by statute, if this was done. To this ruling and decision the defendants duly excepted. “The defendants thereupon requested that a jury of twelve might be summoned to try the issues of fact, claiming that the Constitution guaranteed that the right of trial by jury should remain inviolate, and that before and at the time the Constitution of Connecticut was adopted, a defendant could not be deprived of his property unless upon the verdict of a jury of twelve. The court overruled this claim of the defendants, and the defendants duly excepted.” There was no error in these rulings of the court. The provisions of General Statutes, § 1356, here called in question, are valid and constitutional, and no objection can now be urged to them which has not already been considered and overruled in the decisions of this court. Curtis v. Gill, 34 Conn., 49; Guile v. Brown, 38 id., 237; LaCroix v. County Commissioners, 50 id., 321; Seeley v. Bridgeport, 53 id., 1. The defendants objected to the notice served, which read as follows: “ You are hereby notified to quit possession of the premises No. 95 Bank street in Waterbury, on or before the 20th day of August, 1894.” We think such notice “ substantially” in the form prescribed in General Statutes, § 1355, and sufficient. — 439 — Several exceptions to rulings upon evidence were noted. Such rulings appear to us to be correct, and not of sufficient importance to justify detailed consideration. It appeared upon the trial that the defendants, or their predecessors under whom they claimed, had been in occupation of the premises in question since May 1st, 1887, and as stated by the court in its charge to the jury, the question of fact was largely whether a lease for a fixed term of time was agreed upon in May, 1887, or whether no time was agreed upon. The plaintiff claimed no time was agreed upon, and that the agreement was governed by General Statutes, § 2967, and constituted a letting from month to month that would terminate at the end of any month. Under this claim it appeared that the notice to quit was served on the defendants August 2d, 1894, (not on July 24th, 1894, as stated in the complaint) fixing the day to quit as August 20th, 1894. The plaintiff also testified that he did not recognize the defendants as tenants, but regarded them as interlopers, since the first of August, 1894, and claimed the lease was continued from month to month until August 1st, 1894. The defendants, claiming, as aforesaid, that the lease was for a year and had not expired, “also claimed and offered evidence to prove, that even if the agreement was to be construed as a letting from month to month, they entered into possession of the premises and occupied the same during the whole month of July, 1894, and that they had paid the rent therefor for said month of July, with the knowledge and consent of the plaintiff; and they claimed that the allegations in the complaint, that they had hired the premises in question for the term of one month from the first day of June, 1894, and that said lease had expired by lapse of time, and that the lessee neglected and refused to quit possession of said premises, and that they still hold over the terms of said lease and retain the possession thereof, were not true; and they asked the court to say to the jury that even if it was found by them to be a monthly letting, still if the defendants occupied said premises during July, 1894, as tenants with the knowledge and consent of the plaintiff, that the relation of — 440 — landlord and tenant continued between them during said month of July, and that the plaintiff could not recover in this action upon the allegations in his complaint. The court refused to charge the jury on this point as requested by the defendants, and the defendants duly excepted thereto.” It will be observed that the claim made, as embraced in the language above quoted, is not that upon the facts therein recited, and assuming that the plaintiff recognized the defendants as lessees during July, 1894, the relation of landlord and tenant continued between the parties during the month of August, 1894, and that therefore the lease had not terminated on August 20th, 1894, but continued throughout said month of August, 1894. And further, it will be seen, that it was not claimed that the plaintiff could not recover, except in the restricted sense that he could not do so upon the allegations of his present complaint; by reason, inferentially, of variance between allegations and evidence. But on the assumption that the lease expired July 31st, 1894, instead of June 30th, 1894 — yet, since in that event also it expired before the service of the notice — the variance does not seem to us of sufficient materiality to require the court to charge the jury that it barred the plaintiff from recovery. Under the circumstances we do not feel called upon to say what the duty of the justice would have been, if a radically different request had been made, namely, to charge concerning the effect of the defendants continuing in possession of the premises after the 31st of July, and until August 2d, 1894, without notice or objection from the plaintiff, if they found such to be the fact. While it is the duty of a court, without specific request, to give a jury such instructions as are not only correct but adapted to the issue before them, it is hardly in the interests of justice to apply that principle with inflexible rigor to the charge of a justice of the peace to a jury, in an action of summary process, in relation to a minor point in the case, not embraced in the main controversy, and not suggested in the claims of able counsel. The charge is complained of in other respects, but it appears to us to have been correct, and in accordance "with the — 441 — provisions of General Statutes, § 2967, that “no holding-over by any lessee, after the expiration of the term of his lease, shall be evidence of any agreement for a further lease.” There is no error in the judgment complained of. In this opinion Andrews, C. J., and Hamersley, J., concurred.