Trull v. Granger

A contract dated at a future day, leasing lands for a term commencing at such day, gives to the lessee, when the day arrives, the right of possession and to maintain ejectment against a stranger wrongfully withholding. A lessee under such a contract is not driven to an action of ejectment against his lessor. He may maintain his action for his damages upon the implied agreement of the latter to yield him the possession, or in tort for the violation of the duty arising from the relation of landlord and tenant. The measure of damages, whether the action be on contract or in tort, is the same: the difference between the rent reserved and the value of the premises for the term.

On' the sixth day of September, 1849, the plaintiff entered into an agreement with the defendants to take a store which they were building, for five years from the first day of May, 1850, at the yearly rent of five hundred dollars, payable quarterly in advance. The agreement was reduced to writing, the plaintiff giving the defendants an instrument, binding himself to pay the rents and observe certain conditions, and receiving from them one of which the following is a copy: “ This is to certify that we have this first day of May, 1850, let and leased to Ezra Trull, store No. 1, in the first story of our building, on block No. 102, Syracuse, for the term of five years, with the sole and uninterrupted use thereof, at the yearly rent of five hundred dollars, payable quarterly in advance, subject to the conditions of a lease bearing equal date herewith, made by said Ezra Trull. The cellars under the said store are to go with the store, and said store is to be lathed, plastered and painted, and the shelves put up on the east side, with counters on said east side only. Steven D. Dillaye. Á. P. Granger. Syracuse, Sept. 6, 1849.” In February or March, 1850, the defendants leased the premises to another person for five years, and he went into ' possession. On the first of May the plaintiff called on the defendants, tendered them the rent of one quarter in advance, and required the possession of the store. They refused to receive the rent, and to give him possession. He thereupon brought.his action to recover his damages. The action was tried at the Onondaga circuit in October, 1850, before Mr. Justice Gridley. Upon the trial the facts above stated were proved, and it was also.shown that the yearly . value of the premises above the rent agreed to be paid, would be one hundred dollars for each of the five, years of the term, and that the present value of the difference, making the proper deductions for interest, was $415'99. ■ No testimony was given” on the- part of the defendants. The defendants’ counsel moved that the plaintiff be non-suited, on the ground that the action should have been to recover the possession of the premises, if for anything; the plaintiff, if his lease is valid, being entitled to the possession as against the defendants, or any intruder into the possession. ■ The motion was overruled and the justice charged the jury, that the difference between the rent reserved in the lease., and the yearly value of the premises as proved by the plaintiff, after making such proper rebatement as would give the present value of such difference for the period specified in the lease, was the amount of damages for which the plaintiff was entitled to their verdict, and that such sum, from the proof in the case, appeared to be $415-99. Exceptions were taken to the denial of the nonsuit and the charge. The jury found a verdict for the plaintiff for |415'99, upon which a judgment was rendered, which was affirmed at the general term held in the fifth district, in May, 1851. The defendants appealed. I. There was a demise of the premises on the sixth day of September 1849, for five years from the first of May 1850, and although until the latter day the lessee had no estate for the term but an executory interest in it, yet on that day the estate actually vested in him, and that without entry; so that he might have brought ejectment to obtain the possession. (3 Hill, 330, Gardiner v. Keteltas; 1 id. 484, Allaire v. Whitney; 1 Com. 305, S. C.) The instruments executed are equivalent to a lease under seal with covenant of title and for quiet enjoyment, and nothing more. There is no pretence that the covenant for the title was broken; and that for quiet enjoyment can only 'be violated for an eviction or other actual interference with or disturbance of the lessee’s possession by one having paramount rights. There must be an actual disturbance of the possession. A mere refusal by the lessor to permit the lessee to. enter is not a breach of the covenant. II. If there was a breach of the agreement which was equivalent to a covenant for quiet enjoyment the plaintiff was entitled only to nominal damages. (Sedg. on Damages 168, 169; 14 Wend. 38, Kinney v. Watts; 2 Hill, 105, Kelly v. Dutch Church.)