Bonaparte v. Thayer

Page, J., delivered the opinion of the Court. This suit was brought to recover damages for the seizure and sale of the appellees’ goods, under a distraint alleged to have been wrongfully and illegally made, at a time when no rent was due. The narr. contains three counts ; the first sets out the illegal distress ; the second that the appellant forcibly and unlawfully took and carried away the plaintiffs’ goods, etc.; and the third, that the appellant broke and entered the plaintiffs’ house, and seized and took possession of and carried away the appellees’ goods, whereby the plaintiffs were deprived of the use and benefit of the same. The first and second pleas were the general issue; the third made the averment that the plaintiffs agreed to lease the property of the defendant for one year upon the terms set forth in a certain written lease, signed only by Mary B. Thayer, but assented to by her co-plaintiff, and that the plaintiffs in the meantime at their own request, by the permission of the defendant, took possession of the premises and paid rent as tenants of the same, and that on the 5th of December the rent being in arrear and unpaid to the amount ⁵⁵³ of $19.25, the defendant issued a distraint warrant for the collection of the same under which the goods of the plaintiffs were regularly and in due process of the law, taken and sold, and the proceeds, after the payment of expenses, being the sum of $14.36, were applied on account of rent due to the defendant.

The plaintiffs in their replication denied the alleged lease of the property ; that any rent was due ; and averred that the said alleged lease was “vacated and surrenrendered” before the said proceedings, that the rent was tendered but refused by the defendant who claimed possession of the property, and that the distraint warrant was illegally issued by the defendant. The negotiations for the rent were begun on the 25 th of August, by Mrs. Thayer and Mr. Manning, the latter being the agent of Mr. Bonaparte. At the interview of that date between them, Mrs. Thayer paid ten dollars to Manning, who gave her a receipt therefor, which set forth that it was for •‘Account September rent 1519 Myrtle ave.” A few days later the Thayers moved into the house. On the 30th of August both the Thayers met Manning on the property, and Manning then agreed to have certain repairs done.

On the next day Manning and Mrs. Thayer again met, and the latter signed a lease for the property. The term mentioned in this paper was one year from the first of September at the rate'of $222.00 per annum payable in instalments of $18.50 per month in advance. Thayer never signed this lease, but he admits that “he agreed to sign it when the repairs were finished and Mrs. Thayer testified that it-was agreed, she should not be bound by it until her husband had signed it. It seems to be clear therefore, upon the evidence of the appellees, that while the written lease may not be operative as an executed paper, yet possession of the premises was taken by the appellees with a clear understanding between the parties that there should be a written lease between them, and that the paper which was signed by Mrs. Thayer, but not by her husband, was the instrument that they contemplated ⁵⁵⁴ should be executed The testimony on the part of the appellant varies somewhat from the statements made by the appellees.

According to Mr. Manning’s testimony, the Thayers were told that the lease must be signed before they could take possession, and the keys of the house were not to be given up to them until the lease was actually signed ; and that the next day Mrs. Thayer signed the lease and said Mr. Thayer "would be in about dinner time” and sign also. What may be the exact condition of fact upon this point is not very material, for the reason that if the appellees occupied the property with the understanding that the lease should be signed, then the law implies a verbal contract- of similar import with the written lease, though it was never executed. Emrich v. Union Stock Yard Co., 86 Md. 485 . It is contended however, that this principle does not apply, because the lease was not to be signed until the repairs were completed.

The evidence is conflicting as to whether the parties did actually so agree, but if they did, the precise timé when the repairs stipulated for were finished is not made clear by the evidence, and the facts are practically conceded that the lease was to be signed at some time, and that the appellees took possession with that understanding. If the agreement as to the signing is to be held as equivalent to an agreement that the term shall not commence until the repairs had been completed, then it might be possible that the appellees could have declined to enter at all, until after the repairs had been completed. But under this hypothesis, if the appellees actually entered and occupied the premises before the completion of the repairs, it would be most inequitable to hold that they had not thereby waived their right to performance as a condition precedent to the beginning of the term. If, therefore, the appellees entered into the possession of the premises under the agreement of renting set forth in the unsigned lease, they are legally bound according to the terms of the lease, although there may have been an understanding between the parties that the paper was not to be signed by Thayer until the re ⁵⁵⁵ pairs had been completed.

Gears' Landlord & Tenant, sec. 70; Hoven v. Wakefield, 39 Ill. 519 ; 1 Washburn on Real Property, 523, 5th ed. top page. If, on the other hand, there was no such agreement as to the time when Thayer should-sign the lease, or if the repairs had in fact been completed before the Thayers signed it or made any tender to do so, it is clear they cannot use the fact that it was not signed as a defense to any of the obligations growing out of their condition as tenants of the property. If what has been stated be correct, it follows that the Thayers were the tenants of the property for the term of one year from the first day of September at the yearly rate of $222.00, payable in monthly instalments of $18.50 in advance. The next question of leading importance—is there any evidence to show that rent was due at the time of the issuance of the warrant of distress on the 5th of December?

The receipt shows that ten dollars was paid on account of September rent, on the 25th of August. It seems to be conceded that the balance of rent for September was also paid. The amount paid for October and claimed by the Thayers to be due for the month of October was $17.25; it being contended by them that they were entitled to a credit of seventy-five cents on the rent for that month, on account of the expense incurred by them in repairing a spigot which had given out after they had taken possession of the premises. During the month of November the rent for this month was paid in instalments during the month.

On the 7th of December the appellees sent to the appellant, Mrs. Thayer’s check for $18.50 for the December rent but this was returned by Mr. Bonaparte. If Mr. Bonaparte was under an obligation to receive the check of December 1st, and to allow for the cost of the spigot, the rent had been fully paid at the time the distress was made. It is contended by the appellant that the offer of the check did not constitute a tender, first because the actual money was not produced, and second because it was not made to appear that the appellees “always kept the money ready.” ⁵⁵⁶ But there was evidence before the jury from which they could find that the drawer of the check had the funds in the bank to her credit sufficient to pay the check had it been presented, and further that theretofore checks of the same kind in payment of the rent had been accepted and that the appellant had made no objection to such a mode of payment. Moreover Mr. Bonaparte in his letter of December 3rd made no objection to the character or quality of the tender, that it was by check and not in money, but refused to receive it on other grounds.

It is not competent for him now to raise the objection that the tender was not made in money; that, in view of the circumstances we have stated, must be considered as waived. MeGrath v. Gegner, 77 Md. 330 . As to the second objection, that it does not appear that the appellees did not “always keep the money ready.” A tender does not discharge the debt; at most the proof of such tender and of its refusal will be to throw on the party refusing, the burden of all subsequent costs. Hence it is that the plea of tender at law is not sufficient unless there is a profert in curia ; Soper v. Jones, 56 Md. 511 ; and in certain cases in equity, when it" would be inequitable to allow the party who has made the tender to keep the money and make a profit from it unless it is made to appear