Proskey v. Colonial Hotel Co.

By the Court, McCarran, J.: In this action the appellant, W. S. Proskey, appeals from the judgment of the Second judicial district court sustaining the demurrer to the complaint of the appellant, filed in said court against the Colonial Hotel Company, a corporation. The principal part of his complaint is as follows: " (3) That in the month of April, 1910, plaintiff was occupying an apartment in said hotel or apartment house of the said defendant, and at said time plaintiff desired to leave the State of Nevada, to be absent for some months; that plaintiff at that time had numerous personal effects and valuable papers in his possession and in the apartment which he was then occupying in said hotel or apartment house of defendant; that, for the purpose of procuring a secure and safe place for said personal effects and said valuable papers, the plaintiff at said time made an agreement with said Colonial Hotel Company by, through, and with its duly authorized agent and manager, George T. Crosby, by the terms of which said agreement it was agreed between plaintiff and defendant that the plaintiff should have the sole and exclusive occupancy of said apartment for the safe keeping of his said personal effects and said papers until the return of plaintiff to the State of Nevada in the month of November or — 78 — December, 1910; that, in consideration, of the plaintiff so having the exclusive use, occupancy, and control of said apartment for and during the time and for the purpose aforesaid, the plaintiff paid to said defendant the sum of $40 per month for the months of May, commencing May 6, June, July, August, and September, 1910, and at the rate of $70 per month for the months of October and November down to the 6th day of December, 1910, the same being the price fixed -upon and agreed to by said defendant and plaintiff; that said price so fixed and paid was the regular price charged by defendant for said rooms during said months if actually occupied; that defendant had offered to keep said personal effects and papers of plaintiff in the basement of said hotel, free of charge, but plaintiff desired to have his said personal effects and papers kept secure and safe from inspection beyond any question, and was willing to pay the price hereinabove set forth for the purpose of securing such security and safety for his said personal effects and papers, and that such security and safety of his said personal effects and papers was the sole inducement and consideration for making said agreement and paying said price, and that plaintiff never would have made said agreement or paid said price, except for the belief that he would secure such security and safety for his said personal effects and papers. " (4) That plaintiff was absent from the city of Reno and said hotel or apartment house from the month of April, 1910, until the first part of November, 1910; that, during the said absence of plaintiff, plaintiff did not have the sole and exclusive occupancy of said apartment in said hotel or apartment house, but that during the absence of the plaintiff the said defendant, without the knowledge or consent of plaintiff, rented said apartment to divers and sundry persons and permitted such persons to use and occupy the same, and thus have access to plaintiff’s said papers and effects if such persons so desired; that by reason of the defendant leasing said apartment during the absence of plaintiff and permitting said divers and sundry persons to occupy the same, as — 79 — aforesaid, plaintiff did not have the exclusive control, use, or occupancy of said apartment, and was thus deprived of the safety and security of his said personal effects and papers, which he desired, contracted, and paid for, and by reason thereof the consideration for the said agreement between plaintiff and defendant as to plaintiff entirely failed, and the object and purpose for which said agreement was made by the plaintiff was thus destroyed and rendered of no effect, and plaintiff was thus deprived of any consideration whatever for the money,so paid to defendant, as aforesaid.” To this complaint a demurrer was interposed principally on the grounds that the complaint did not state facts sufficient to constitute a cause of action; and the demurrer more specifically is as follows: "That said amended complaint does not state facts sufficient to constitute a total failure of the consideration, and that the facts therein stated, if true, would only constitute a breach of the covenant of quiet enjoyment, and consequently in that regard only a breach of the rental contract, and not a total failure thereof. That the same does not state facts sufficient to constitute a substantial breach of the contract of rental, but on the contrary thereof shows that the same was substantially performed and that the alleged breach of the contract attempted to be pleaded, as set forth in the amended complaint, would only constitute a technical and unsubstantial violation thereof. That the amended complaint does not state facts sufficient to show and does not allege that any damage in fact resulted to the plaintiff by reason of the alleged violation by the defendant of the rental contract, whereby the plaintiff would not have the exclusive possession of the apartments for all of the time mentioned in the said amended complaint, and that at most said allegation would only amount to a trespass upon the defendant’s right of possession, for which his only remedy would be for damages, if any had been sustained.” From the allegations of the complaint it will be observed that no claim is made by the plaintiff that his personal effects and papers were not restored to him in — 80 — their original condition and position, nor is it directly averred that any person did in fact view or observe, or in anywise disturb or molest, his papers or effects, nor is it alleged that any person or persons gained any knowledge or information from the personal effects or papers. As set forth in the complaint there was a rental agreement of $40 a month for certain months and a rental agreement of $70 per month for certain other months, to wit, October, November, December, etc. As appears from the face of the complaint the plaintiff returned during the first part of November and occupied the apartment, paying rental therefor as before agreed until the first part of December, and it must be inferred from the allegations of the complaint that the plaintiff did not have knowledge that any person had been permitted to enter the apartment during his absence or, having knowledge, made no complaint. In any event, the rental agreement of $40 a month for certain months and $70 a month for certain other months was duly paid by the plaintiff, and he seeks to recover by his complaint the return of the total amount paid, amounting in all to $340. 1. To constitute a tenancy from month to month a special agreement to that effect may be made, or the tenancy may be implied from the manner in which the rental is paid. A lease for an indefinite term, with monthly rental reserved, creates a tenancy from month to month. 2. However general this principle of law may be, it is unquestionably true that a lease for a definite term less than a year, the limits of which are specifically stated in the agreement, would not come under this rule, even though the rental was paid monthly It is immaterial in this case as to whether the agreement alleged in the complaint created a tenancy from month to month, as contended by counsel for respondent, or created a tenancy for a definite period or term of months, with — 81 — monthly rental reserved, as contended by the appellant. The appellant bases his right to recover upon the theory of a total failure of consideration, and he cites authorities supporting his contention. A careful reading of the authorities cited by appellant, however,' discloses that in those cases there was an entire or total absence of consideration. The most that can be said in the case under consideration is that there was but a partial breach of an alleged contract. Appellant’s personal effects and belongings were safely kept in the apartment during all of the time of his absence as well as after his return. The complaint fails to state either inferentially or otherwise that the papers or personal effects.were actually molested, viewed, or observed by any person, or that any information contained in the papers or personal effects was ever gained or obtained by any one. It is manifest that the consideration did not fail in this case between the time the plaintiff is alleged to have returned, to wit, the first part of November, and the 6th day of December, the date on which it is alleged that he discontinued his tenancy and between which dates he was personally present and occupying the apartment. According to the complaint the alleged special or extraordinary agreement was only to continue during the absence of the appellant, but in his complaint appellant prays for judgment, not only for the return of the rent paid for the time during which he was absent, but also for the return of the rent paid for the time after his return. The amount of rental covering the time of his absence was less than $300, and if he had sued for that alone he could not have brought his action in the district court. Whether a prayer for the recovery of an additional month’s rent not within the alleged special contract ought to be considered as stating a cause of action within the jurisdiction of the district court, so far as the amount in controversy is concerned, is a doubtful proposition. Conceding, however, for the purposes of this case, that it may be done, even then we are confronted with an additional allegation which clearly — 82 — shows that there was not a total failure of consideration, there being no averment of interferences with appellant’s possessions after his return. Appellant is not entitled to recover the rent paid under the allegations of the complaint, because the facts alleged do not show an entire failure of consideration, but at most only a partial breach of the contract, for which no actual damage is alleged. As was well said in the case of Bishop v. Stewart, 13 Nev. 41, no principle is better settled than that a party cannot rescind a contract and at the same time retain possession of the consideration in whole or in part which he has received under it; he must rescind in toto or not at all. It has been held in a degree almost to a uniformity that courts will refuse to decree a right of rescission in favor of a party to a contract, because such contract was only partially executed or because of only a partial failure of consideration. In order for a litigant to prevail under such a state of affairs the parties to the-agreement or contract must be replaced in their previous condition. Even should this special agreement be construed as constituting a tenancy for a definite period, the alleged fact that divers and sundry persons were permitted to have access to appellant’s leased apartment would not constitute a total absence of consideration, in view of the fact that during all of that time appellant’s personal effects were being safely kept, and in view of the further fact that appellant had personal occupancy of the apartment during a portion of the time for which he seeks to recover the rental paid. In the allegations of the complaint there is no hint of actual, damages, much less a positive averment of such. The. respondent in this action moved to dismiss the appeal upon the ground that appellant failed to cause the sureties on the appeal bond to justify when an exception was filed to the sufficiency thereof, but, as the case must be decided in favor of the respondent, it is not necessary for us to go into that matter at this time. — 83 — It follows that the order of the lower court sustaining the demurrer to the complaint should- be affirmed. 1-t is so ordered. Norcross, J.: I concur: