Beardsley v. Morrison

JBartch, C. J. This action was brought to recover damages for unlawful and forcible ouster and for consequential damages. It appears that the defendant, Kinney, owner of certain premises, known as the Everett Hotel, on September 11, 1893, leased the same to the plaintiff for one year from October 1, 1893, with the privilege on the part of the lessee to extend the lease for two years from October 1, 1894. By the terms of the lease, the lessee was to pay $25.00 per month up to January 1, 1894, and $50.00 per month thereafter. It was also provided in the lease that the lessor, within thirty days, after written notice from from the lessee so to do, should finish a certain addition to the hotel according to certain designated plans, and that upon the completion of the addition the rent should be $75.00 per month. Under the terms of the lease all rents were to be paid to defendant Morrison, and the instru [481] ment contained a clause for re-entry into possession by the lessor, and sale of tbe effects of tbe lessee in case tbe rent was not paid as provided by tbe terms of tbe lease. Tbe rent was payable in advance on tbe lOtb day of eacb month, and delinquent in thirty days thereafter. From tbe evidence it appears that the lessee took possession of tbe premises, and in January, 1894, tbe lessor assigned tbe lease to defendant Morrison. After January 1, 1894, tbe lessee elected to extend tbe lease as provided therein, and in February of tbe same year served notice in writing upon tbe lessor and bis assignee to complete tbe addition to tbe hotel, but the addition was not completed. It appears tbe lessee paid tbe rent regularly to defendant Morrison, except for tbe month of May, which became due May 10, and, if not paid, delinquent on June 10, 1894. Instead of paying tbe rent for that month to Morrison, tbe lessee purchased lumber for tbe amount thereof, and hauled it to tbe premises for tbe purpose of completing tbe addition himself. On June 11, 1894, defendant Morrison forcibly ejected tbe lessee and took possession of tbe premises, including furniture and fixtures. Such are tbe material facts so far as we are able to glean them from tbe very imperfect record filed in this case. At tbe trial tbe jury returned a verdict in favor ■ of tbe plaintiff in tbe sum of $472.27, and upon judgment having been entered thereon, this appeal was prosecuted. Tbe first contention of appellant, which we will notice, is that tbe rent was not paid for tbe month of May, 1894, as required under tbe terms of tbe contract and that therefore respondent Morrison was authorized to take possession of tbe premises and declare a forfeiture of tbe lease. Under tbe terms of tbe lease, tbe lessor was bound to [482] build or complete the addition to the hotel, upon receiving thirty days’ written notice to do so from the lessee. Such notice was given, but neither the lessor nor the assignee performed this part of the contract by finishing the addition. Their failure to do so gave the lessee the- right to make the addition tenantable in accordance with the terms of the lease, and set off the expense against the rent. The assignee was mentioned in the instrument as the party to receive the rent, was aware of the terms of the contract, which he assumed, and is therefore in no better plight than the lessor himself. The making of the improvements having been refused by the landlord after notice from the tenant, the purchase of the lumber and placing of the same upon the premises, with the intention, on the part of the tenant, to make the improvements, as provided in the contract, constituted a sufficient payment of the rent for the month of May, 1894, to prevent a forfeiture of the lease, the lumber amounting in value to the rent, and therefore the tenant was not in default, and the as-signee had no right to forcibly oust him of possession. Where a lease of premises contains a covenant binding the lessor to make certain improvements and repairs, and the lessor refuses to make such improvements and repairs, after notice from the lessee to do so, the lessee may make the same in accordance with the covenant, and charge the reasonable value thereof against the rent. 12 Am. & Eng. Enc. of Law 724-726, 748, 1005; Hexter v. Knox, 63 N. Y. 561; Myers v. Burns, 35 N. Y. 269; Cook v. Soule, 56 N. Y. 420; Ecke v. Fetzer, 65 Wis. 55; Orton v. Noonan, 30 Wis. 611; Wolfe v. Arrott, 109 Pa. St. 473; Buck v. Rodgers, 39 Ind. 222; Wright v. Lattin, 38 Ill. 293. Appellant’s contention that the lessee’s agent voluntarily surrendered possession to the assignee, is not well taken. [483] There is evidence to show that, upon being refused possession by the agent, the assignee broke a window and a piece off from the door, and then, being enabled to open the door, took possession of the premises, and that an employee of the assignee forcibly ejected the agent from the house. It is clear from the evidence that the taking of possession by the assignee was forcible, and, under the circumstances, unlawful. But this being a case at law, even if we thought otherwise, still, as to this point, the verdict of the jury would be conclusive, since there is evidence in support of it. Nor do we think the court erred in refusing to admit in evidence the files in case No. 13726. There is no plea which warrants the admission of those files. The answer simply alleges, “that the plaintiff has an action pending in the third district court against this defendant for the purpose of recovering the possession of said premises.” This allegation shows that the action pending and referred to was one for the recovery of possession of the premises— an action of ejectment, while this action is one for damages. The two actions are not founded upon the same cause of action, and therefore the former will not authorize the abatement of the latter. Where a party pleads a former suit pending, in abatement of a second suit, he should allege clearly that the cause of action of the first is identical with that of the second — that the same matters are in issue in both suits. Wilson v. St. Paul, M. & M. Ry. Co., 46 N. W. 909; Vance v. Olinger, 27 Cal. 358; Larco v. Clements, 36 Cal. 132. We have considered the other questions presented and have found no ground for reversing the judgment. It is therefore affirmed with costs. BaskiN, J. and McCarty, Dist. Judge concur.