Fallis v. Gray

GOODE, J. (after stating the facts). — The defendant raises three points against the judgment: first, that the plaintiff sued on an express promise to repay him and got judgment on a quantum meruit; second, that there was no consideration for the promise to repay, which was not given as part of the original contract of letting, but a week or more later; third, that the finding for plaintiff is excessive; as, in any event, he would be entitled only to an amount equal to the rent from September 1st to September 13th, which, amount would be $6. .The statement does not necessarily declare on a promise by the defendant to repay plaintiff the money he had advanced for the month’s rent. It avers that such a promise was made; not as the gravamen of the complaint, but as one of the facts of the transaction, which facts the statement recites. In our opinion the cause of action relied on is the failure of the condition precedent, on which plaintiff’s obligation to pay rent depended, to-wit-: defendant’s agreement to repair the house and make it tenantable. According to plaintiff’s testimony this was an express stipulation; and it would have been a covenant if the lease had been under seal. It was equivalent to a covenant to make the premises tenant-able. The burden of the complaint is that this stipulation was not kept, and, therefore, plaintiff was excused from the duty to occupy the premises and entitled to recover, as money had and received by the defendant, the rent he had paid but which never fell due. There is no doubt that an express covenant to make premises tenant-able before a lessee shall be bound to occupy them or the rent begin, is a condition precedent; and until complied with a lessee is not bound for the rent; and if he has paid it before the lessor refuses to repair, he may coun [258] terclaim for damages. [2 McAdam, Landlord and Tenant, sec. 386, pp. 1247,1249.] If the condition on which the lease was to be operative was never complied with by defendant, plaintiff was entitled to sue for the money paid. This ruling disposes of the first two points. Of the first because the action is not quantum meruit; and of the second because it is not on a promise to- repay, void for lack of consideration, but is for money had and received which the defendant is not entitled to hold. It is said the judgment is excessive. The case could have been disposed of for the plaintiff on one of three theories. The first is that if the plaintiff’s testimony regarding the contract was true, the condition on which he was to become a tenant never occurred. If the trial court, as trier of the facts, found that way, plaintiff was entitled to the entire consideration he had advanced, and the judgment is too small. The second theory is, that by mutual consent plaintiff and defendant agreed that plaintiff’s term should be surrendered as soon as defendant found a new tenant. On this theory, when the premises were relet during the term for which plaintiff had paid defendant, plaintiff became entitled to receive whatever rent was paid for said term. [2 McAdam, sec. 396, p. 1271; Stanley v. Koehler, 1 Hilt. 352; Smith v. Niven, 2 Barb. 180; Page v. Ellsworth, 44 Barb. 636; Carthledge v. Crespo, 5 Misc. 349.] The third theory is that the defendant’s version of the contract was true and plaintiff was bound for the rent from August 13th to September 13th, whether he occupied the house or not. The defendant relet the premises in question for part of the month for which plaintiff had paid. Plaintiff, therefore is entitled to be reimbursed the sum received from the new tenant. [2 McAdam, Landlord and Tenant, sec. 400.] If defendant’s version of the contract is correct, plaintiff had the right to move into the house at any day prior to September 13th, and by reletting before that date, plaintiff was practically evicted. If we couple that fact with the one that plaintiff got double [259] rent for part of the month, we know of no principle on which defendant can be excused from liability to plaintiff. Just what reimbursement plaintiff would be entitled to on either the second or third theory of the facts would depend on when the new tenant’s rent began; which, as said, was either the 20th or 24th of August. The court allowed plaintiff three-fourths of a month’s rent; and the presumption from the judgment is that the facts were found according to either the second or third of the possible theories of the case. This being assumed, it follows that the court must have found that the premises stood empty for one week of plaintiff’s month, that is, from August 13th to August 20th. This was equivalent to finding that the new tenant’s rent began to run on August 20th; and as the evidence admits of that conclusion, it cannot be reversed by us. The judgment is affirmed. All concur.