Osmers v. Furey

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court: 1. It will be observed that under the terms of the lease no-lien was granted to secure the payment of any moneys which the lessor might be compelled to advance in order to put the property in repair either during or after the expiration of the term. The lessor was authorized to re-enter and forfeit the lease if the plaintiff failed to pay any installment of rent according to its terms, or to make or pay for any necessary repairs; but there is no stipulation in the clause quoted, providing for a lien, that plaintiff’s furniture should be seized and sold to reimburse the lessor for any outlay made by him in this regard. The lien was clearly imposed by the terms of the lease for the — 589 — purpose of securing the monthly installments of rent only, for there is no other stipulation as to the matters secured by it than the one quoted above. Nor is there any agreement recited anywhere in the lease that the repairs were to be considered additional rent. Such being the stipulation of the parties, the allegation of the defendant Steele, purporting to set forth in his separate answer the substance of the lease, to the effect that it was stipulated that the repairs done or to be done by plaintiff 'at her own expense were additional rents, finds no justification under the covenants or agreements therein. Apart from the issue as to damages and the phase of the case presented by the counterclaim, which will be noticed hereafter, the only issue involved was whether the taking by the defendants was wrongful. On this issue the jury found for the plaintiff, and we think properly so, upon the evidence, for, though there was some conflict as to whether there was still due a small balance on the July installment of rent, the evidence shows a decided preponderance in favor of plaintiff’s contention that nothing was due on that or any other account. The evidence tends to show also that about July 16th the defendant Steele, desiring to build some sort of an addition to the rear of the building, entered upon the back yard without consulting plaintiff, and began and continued his operations there until July 30th, when the plaintiff abandoned the' place and sought to move out the furniture. The workmen employed took away the steps, preventing access to the building from the yard, and excavated for the foundation of the new structure to the depth of several feet. They also destroyed a chimney, which was used by plaintiff’s lodgers in the basement, so that they were compelled to seek lodging elsewhere. Other lodgers left because of the noise incident to the work. So that not only was plaintiff justified in abandoning the premises on account of this action of Steele, but, the rent for July having been fully paid, the furniture could not be seized or held by Steele to enforce the payment of installments thereafter falling due. The plaintiff was by these acts of Steele actually evicted from a part of — 590 — tbe premises, and constructively from tbe rest, and was at liberty to abandon possession, and thus be discharged from any obligation to pay rent for tbe remainder of tbe term. Eviction by tbe landlord is a complete defense to an action for rent. (York v. Steward, 21 Mont. 515, 55 Pac. 29, 43 L. R. A. 125; Kline v. Hanke, 14 Mont. 361, 36 Pac. 454; 18 Am. & Eng. Ency. of Law, 2d ed., 300; 1 Taylor’s Landlord and Tenant, 9th ed., 377.) Tbe reason for tbe rule is that, tbe tenant having been deprived of tbe beneficial use of tbe prop-erty by tbe wrongful act of tbe landlord, tbe consideration for the-agreement to pay rent has failed. (Dyett v. Pendleton, 8 Cow. 727.) This is common sense as well as law, for “the usual words of demise import a covenant for quiet enjoyment, which signifies that tbe tenant shall not be evicted by title paramount, and also that bis possession shall not be disturbed by tbe acts or wrongful omissions of tbe lessor.” (York v. Steward, supra.) It is clear, therefore, that, upon tbe facts as found by the-jury, tbe defendants were guilty of a trespass in seizing the furniture, and that tbe verdict as to plaintiff’s right to tbe possession is fully supported by tbe evidence. These remarks dispose of tbe contention of appellants that tbe evidence is insufficient to sustain tbe verdict upon this issue. 2. Tbe plaintiff testified that most of tbe furniture bad been purchased by her from a prior lessee for $1,600 about fourteen months before tbe seizure, and that soon after her purchase she-bad added to it to tbe amount of $400 by tbe purchase of new furniture. She stated that she knew tbe value of tbe furniture, and that it was worth $2,000. Tbe testimony was admitted, over tbe objection of defendants that it was incompetent in that tbe plaintiff bad not shown sufficient knowledge to give her opinion, and that tbe purchase price paid by her did not in any way tend to show tbe market value of it. Tbe witness stated further that she bad been using tbe greater portion of tbe furniture for about fourteen months, having bought it when nearly new from one Eva Althoff, who bad assigned tbe lease to her; — 591 — that it was in good condition; that she had once before purchased property of the same sort; that she had added to it about $400 worth of other furniture entirely new; that none of it had deteriorated appreciably by use; and, after stating the price she paid for it ($2,000), that it was still worth that, amount to any person who desired to buy property of that character, whether in the house, as when she purchased it, or not. While the knowledge and experience thus evinced by her was not extensivé, still it was sufficient to permit her to state her opinion. (Holland v. Huston, 20 Mont. 84, 49 Pac. 390; Emerson v. Bigler, 21 Mont. 200, 53 Pac. 621; Porter v. Hawkins, 21 Mont. 486, 71 Pac. 664.) In claim and delivery the purpose is to obtain possession of the property, with damages for its detention. The value to be-found by the jury which the plaintiff may recover, in cáse a redelivery cannot be had, is the market value at the time the taking occurred or the wrongful detention began. But in arriving at this value it is always proper to take into consideration the cost price as one fact tending to establish it. (Angell v. Hopkins, 79 Cal. 181, 21 Pac. 729; Luse v. Jones, 39 N. J. L. 708; Jones v. Morgan, 90 N. Y. 4, 43 Am. Rep. 131;. Boggan v. Horne, 97 N. C. 268, 2 S. E. 224; Roberts v. Dunn, 71 Ill. 46; Small v. Pool, 30 N. C. 47; McPeters v. Ray, 85 N. C. 462.) This evidence-was admissible upon the same principle as was evidence of the price which the property brought at the sale made by the sheriff. Neither was conclusive, but both were proper to be considered by the jury. Testimony of other witnesses as to the value was objected to upon similar grounds, but, for the reasons already stated, we think the court committed no error in admitting it. 3. It was' only incumbent upon the plaintiff, in making her case in chief, to show her ownership of the furniture, and the taking and detention by defendants against her consent. The burden of justification was upon the defendants. When they had introduced their evidence, the plaintiff had a right to rebut their case by showing the eviction, and that nothing was due — 592 — on account of rent. Plaintiff’s counsel, however, introduced as a part of their case in chief, the lease, and the evidence tending to show the eviction. The defendants objected to this evidence, on the ground that it was not relevant to any issue in the case. There is no merit in this objection. As already stated, the eviction by her landlord justified her abandonment of the leased premises, and discharged her from any obligation to pay any other installment of rent. While the proper order of proof was not pursued, still the evidence was relevant to the issues. Besides, the questions bringing out a portion of this evidence were put to the witness on redirect examination to give her an opportunity to explain statements brought out on cross-examination by counsel for defendants, to the effect that when the seizure was made by defendants she was engaged in moving the furniture from the house. The witness clearly had a right to explain. 4. Touching the counterclaim of the defendant Steele, the court, at the request of plaintiff, instructed the jury as follows: “Claims of water rent, plumbing, electric light bills, or damages of any nature to the building, or alleged breaches of any terms of the lease under which plaintiff held possession of defendant’s premises, cannot in any wise be treated as proper matters of counterclaim, or treated as any defense to plaintiff’s cause of action, except, however, the nonpayment of rent, which would constitute a defense or justify defendant’s taking of said furniture; and you are instructed to disregard all testimony with reference to alleged breaches of the contract, other than the nonpayment of rent.” In this instruction the jury were told in substance to disregard evidence tending to support the counterclaim of defendant Steele, except so far as it tended to show any rent due under the terms of the lease, and, if it were shown that rent was due at the time the defendants took the property, this would be a justification of the taking. Defendants complain that this was error. The issue involved is the right of plaintiff to recover the possession of the property, or its value. The defendants could — 593 — •not therefore be allowed to set up a counterclaim for a money judgment, and thus defeat the right of plaintiff to recover such possession. The nature of the action does not permit the interposition of such a defense. TJnder section 691 of the Code of Civil Procedure, providing for the interposition of counterclaims as a defense, such counterclaims only are allowed as tend in some way to diminish or defeat the plaintiff’s recovery. A claim for a money judgment, whether arising out of the transaction set forth in the complaint or not, tends in no way to defeat or diminish the plaintiff’s right of recovery of the possession of the property wrongfully taken from her. If in a given case the counterclaim be established, and the plaintiff nevertheless be found to be entitled to recover the property, the result would be two independent judgments, the one in no way tending to modify or interfere with the other. If the defendant should succeed in establishing his right of possession to the property, as well as his counterclaim, he would have two independent judgments. The statute does not contemplate such a result. (Pomeroy’s Code Pemedies, section 643.) Besides, the cause of action alleged in the counterclaim did not arise out of the transaction set forth in the complaint as the foundation of plaintiff’s claim, nor is it connected with the subject of the action. The transaction set forth is the wrongful taking of the property. While rent due for the use of the premises would have been a complete justification, the fact that it was due did not arise out of the wrongful seizure, nor was it in any way connected with it. It was the result of a breach of the lease, as were all the other items alleged as •elements for defendant’s claim. In Collier v. Ervin, 3 Mont. 142, it was said by this court: “The words in our statute, ‘subject of the action,’ should be construed, not as relating to the thing itself about which the controversy has arisen, but as referring rather to the origin and ground of the plaintiff’s right to recover or. obtain the relief asked.” (See, also, Potter v. Lohse, 31 Mont. 91, 77 Pac. 419, and cases cited.) — 594 — Upon the filing of the answer, the plaintiff moved to have the: counterclaim stricken out. The motion should have been sustained. The instruction excluded from the jury the consideration of all questions arising in connection with it, and was therefore correct. Whether the evidence was or was not sufficient to sustain the counterclaim is wholly immaterial. Complaint is made of other instructions; but, taking them all together, we think they fairly state the law applicable to the case, and that the defendants have no just cause to complain of any of them. 5. The verdict of the jury fixed the value of the furniture at $1,500, and awarded the plaintiff damages to the amount of $500 on account of the taking. Upon entry of judgment the plaintiff remitted the damages, the judgment entered being in the alternative, for the possession of the property, or for $1,500 in case return could not be had. The defendants insist upon a reversal of the judgment and order because the judgment is not in strict accordance with the verdict. The evi-' dence clearly does not sustain any finding for damages. If the judgment had included the amount so awarded, the district court would doubtless have given the plaintiff the option to remit the erroneous allowance or submit to a new trial, for the defendants would then have been entitled to it; but inasmuch as the same end was accomplished by the voluntary act of the plaintiff, and as the defendants secured all of the relief which . they would have been entitled to on the motion, we do not think that the fact that the usual course in such cases was not pur- • sued is a sufficient ground upon which to order a new trial. In any event, the issue as to damages being clearly separable from the other issues in the case, this court, in order to correct a judgment including them, would not have ordered a, new trial of the whole case, but of this issue only. (Collier v. Fitzpatrick, 19 Mont. 562, 48 Pac. 1103; Chicago Title & Trust Co. v. O'Marr, 25 Mont. 242, 64 Pac. 506.) Many other errors are assigned in the brief of appellants,. — 595 — but we do not think they are of sufficient importance to require special notice. The judgment and order are affirmed. Rehearing denied October 12, 1905. Affirmed. Mr. Justice Milburn and Mr. Justice Holloway concur.