Rice v. Biltmore Apartments Co.

Opfutt, J’., delivered the opinion of the Court. 'Phis appeal was taken from a judgment of the Baltimore City Court in favor of the appellee for $236.45, in an action brought by it against the appellant for damages which it claimed resulted from the failure of the appellant to vacate an apartment which he had leased from the appellee’s prede^ eessor in title at the expiration of the term fixed by that lease. The declaration originally contained the six common counts in assumpsit and a count in the nature of an action in cove*nant. Upon the defendant’s demand a bill of particulars was filed, to which exceptions were sustained, and then an amended bill of particulars was filed, in connection with that ■narr. Exception® were also filed to this bill, which were overruled, and after they were overruled, the plaintiff amended his declaration by striking out the common counts, leaving only the conut in the nature of an action in covenant and to that count the defendant demurred.

The demurrer was overruled, and the defendant filed the general issue pleas in ⁵¹⁰ assumpsit, and on these pleas the plaintiff joined issue. So that the proceeding was treated by the parties as an action in assumpsit. During the trial of the case the defendant noted eleven exceptions relating to rulings of the lower court which the record presents for review in this Court. Ten of these exceptions relate to matters of evidence and one to' the court’s rulings on the instructions.

The first question presented by the record which we are called upon to consider is whether what was in the original declaration called the seventh count set.forth a good cause of action. The amended bill of particular’s, filed in response to the defendant’s demand, applied to each count of the declaration, and although the common counts were stricken out, nevertheless, having been filed as a statement of the particulars of all the counts, it must be taken as applying also to the seventh, the only remaining count in the declaration. The amended bill of particulars reads: “Cash paid Isaac Hollins and wife, use and occupation of their house by Lewis Baer, for eighteen days at five dollars a day..... $90.00 “Use and occupation by defendant of apartment at the Biltmore Apartment House for twenty-three days after the termination of his lease, at one hundred and twenty dollars ($120.00) per month................... 92.00 “Expenses incurred putting demised property in good order and condition: Repair- ing broken plaster in bathroom and repainting same, and repairing damage to bathroom cabinet ..................... 35.00 “Costs in the People’s Court in ejectment proceedings.............................. 4.45 “Expenses incurred for counsel fee in recovering possession of the demised property. . 150.00 “Total claim........................ $371.45.” ⁵¹¹ And the seventh count of the narr. is in this form: “And for that the defendant, by lease in writing, dated the twentieth day of "February, 1917, covenanted with the "Woodrow Realty Company, the lessor in said lease, to rent from the lessor an apartment in the Biltmore Apartment Ilonse for the term of three years, beginning on the first day of September, 1920, at and for the rent stipulated in said lease; and in the second paragraph of the express conditions named in said lease the said defendant covenanted ‘at the end or other expiration of the term to deliver up the demised premises in good order and condition.’ And the plaintiff says that by mesne assignments it acquired, on or abont the twenty-sixth day of May, 1920, the right, title and interest of the lessor named in said lease. And the plaintiff further says that the defendant did not ‘at the end or other expiration of the term, deliver up the demised premises in good order and condition,’ to the great damage and injury of the plaintiff, in that the plaintiff was unable because of the breach of covenant of the defendant aforesaid to deliver the said premises to a certain Lewis Baer, to whom it had leased the same for a term of years beginning on the first day of October, 1920, whereby the plaintiff was put to great expense and injury in providing other premises for the said Lewis Baer.

And the plaintiff was further put to great expense and damage in removing the defendant from the premises wrongfully held by him after the thirtieth day of September, 1920, and in repairing the premises occupied by said defendant after he had vacated the same, and for loss of rent of said premises.” 'The plaintiff in this count asks compensation for damages which it sustained from a failure of the defendant to perforan a covenant contained in the lease under which he agreed to deliver up- the premises in good order and condition at the end of the term. The items composing these damages fall into three classes, one of which embraces the expense ⁵¹² incurred by the plaintiff in securing an apartment for Baer, the new tenant, during the time Rice held over after the term, and the value of the property during the time Rice so held it; two, which includes expenses incident to the eviction of Rice; and a third, which includes expenses incurred in repairing the property; and the demurrer challenges the sufficiency of the declaration to justify a recovery for any of these losses or expenditures. The declaration in effect charges that the defendant made a certain contract or lease in which he made a definite and certain promise to deliver up the leased premises at the expiration of the term in good order, and that he broke that promise. These allegations standing alone state a cause of action, since they state a covenant and a breach thereof (Bullen & Leake, Prec.

Plead., 200), since the law presumes some injury from every breach of a contract., and upon a breach an action at once accrues to the injured party. 5 C. J. 1397; 15 C. J. 1318. The declaration in this case does not rest upon the mere statement of a covenant and the breach thereof, but sets forth in the same count various claims for damage®, all of which should rest upon the alleged breach of the covenants of the lease. Inasmuch a® the legal principles applicable to. the facts averred in the narr., upon which the; plaintiff relies in support, of these claims, also control the plaintiff’s right to recovery upon the evidence in this case, and limit and define the damages which he can recover in it, we will deal with those .questions now. Coming then to what may be referred to as the first item of the plaintiff’s claim set out in the narr., it contends that because Rice failed to deliver up' the apartment, it, the' appellee; could not deliver it to Baer, the tenant to whom it had leased it, and that it is entitled therefore to recover first the expense's incurred by it in procuring an apartment for Baer during the period that Rice held over after the expiration of the term of his lease, and second, for the use and occupation of its property for the time it was held by Rice after the end of the term. ⁵¹³ If we assume that the statement substantially charges that the defendant violated a covenant to deliver up the premises in good order and condition, can the plaintiff recover for such losses in this action ?

In the first place there is nothing; to explain why the plaintiff should be paid by tbe defendant for tbe use and occupation of the apartment which Baer occupied while Rice was holding the Biltmore Apartment, and also for the use and occupation of the apartment which he, Rice, occupied as a tenant holding over after the term. ISTo contract to do that is alleged in the narrand in the absence of some definite agreement, it cannot be assumed that Rice was in any way obliged to provide Baer with a house rent free, or that the appellee was entitled to receive rent from both Baer .and Rice, and yet. it was entitled to receive rent from Baer under the terms of the lease to him from the first day of October, and so far as anything in the record to the contrary appears, it could have demanded such rent from Baer. In that ease the only person injured by Rice’s act would have been Baer, who had an undoubted right to recover from Rice for any loss he may have suffered as. a natural and necessary result of Rice’s, wrongful act. But aside from that, it affirmatively appears from the declaration that the plaintiff had leased the property to Baer from the first day of October, 1920, but it does not appear that he covenanted or agreed in that lease to put Baer in possession.

Under these circumstances, while the law will imply a covenant to protect the tenant against a paramount title or against any one claiming under the lessor, it will not imply a covenant to protect the lessee against a stranger or a mere trespasser wrongfully in possession of the property, such as a tenant holding" over after the expiration of his term, but as to such wrongdoer it remits the lessee to the assertion and establishment in the proper forum of the title and right of possession granted to him under the lease. The rule as thus stated is not universally approved, but it is, we think, supported by the weight of authority and has. been accepted ⁵¹⁴ by this Court. Mr. Tiffany, in his work on Landlord and Tenant, page 545, says.: “A lessee who is kept out of possession by a third person who has no right to the possession, as when a previous lessee holds over after his term, has, by some decisions, a right to recover damages against his lessor, and it has been said, as justifying such view, that ‘he who lets agrees to give possession, and not merely to give a chance of a law suit.’ By other.decisions he has no> right of redress against the lessor in such case, it being for the lessee to- obtain possession from the wrongdoer.” And in 24 Gyc. p. 1146, it is said: “Where a lessee does not and cannot enter under his lease because debarred from doing so' by the occupancy of the premises by another tenant with superior right, the former is not liable for rent. The occupancy of another, however, at the time of the letting, or afterward, is no answer by a lessee to a demand for rent unless the tenant is in possession under a title paramount to that of the lessor. * * * Where the lessee is prevented from obtaining possession of the demised premises by a former tenant whose tenancy has expired, the general rule is that he may bring an action of ejectment to recover possession of the premises, and in such action the lessor is not a necessary party.” A question very similar to the one involved here was before the Court in Sigmund v. Howard Bank, 29 Md. 324 .

In that case the bank leased certain premises to one Bialla for a term which expired on June 30th, 1860. During that term the bank leased tire property to Sigmund for a term beginning July 1st, 1860. Bialla, however, wrongfully held over after his term had expired, whereupon Sigmund sued the bank for the violation of an implied covenant that the lessee should have the undisturbed possession of the premises for the term named in the lease. The trial court