Shanfelter v. Horner

Roberts, J., delivered the opinion of the Court. This is an action of ejectment brought by the Comptroller of Baltimore, as trustee for the city, against the defendant, the tenant in possession of the Imperial Hotel property in said city. Issues were joined on the plea of not guilty, and the verdict and judgment being for the plaintiff, the defendant has appealed. The facts are, that the defendant and one Charles C. Duffy, as partners, leased from Charles J. Bonaparte the premises in question, on the 28th of March, 1892, for a term of five years, beginning May 1st, 1892, at a rental of $800 per month (which was subsequently in ⁶²⁶ creased), payable on the first day of each calendar month during said term.

Shortly thereafter Duffy died, and on June 5th, 1893, his personal representatives' and the defendant made another agreement with Bonaparte, by which the interest of Duffy’s estate in said lease was transferred to the defendant. By the terms of this agreement the defendant was accepted by Bonaparte as "sole tenant and debtor,” ánd the estate of Duffy was released from all liability on account of said lease. There can be no question on the evidence, which the record presents, that the defendant not only recognized and treated Bonaparte as his landlord, but after said Bonaparte, by his deed of date September 1st,' 1893, conveyed said property to the appellee, • the appellant treated the appellee as his landlord and fully recognized him as such. Looking to the terms of the original agreement of lease between Bonaparte and Duffy and the defendant, we find this provision, that, "if the rent hereby stipulated to be paid shall, at any time during the continuance of any tenancy created, or to arise in pursuance of this agreement of lease, be for more than ninety days due and in arrear, then the said tenancy shall be at once, and'without notice of any kind, determined, and the party of the first part become and be entitled to immediate possession of the premises aforesaid, provided he shall so elect, but not otherwise.” It is not pretended that the plaintiff did not elect. • ' Referring to the deed from Bonaparte to the defendant, we find that said property is conveyed, “with the right' of the said James R. Horner, trustee, to enforce all the covenants and provisions of said lease, as fully and in the same manner as said Bonaparte could enforce the same, in the event of any future default upon the part of the said Shanfelter or any one claiming under him;” and further, that said property is conveyed “in trust, that said Horner shall hold said property hereby intended to be conveyed, and collect all the rents, income and revenues to be derived therefrom, when the same shall mature and accrue, for the sole and separate use of the Mayor and City Council of Baltimore, &c.” ⁶²⁷ The record contains three exceptions.

The first and third relate to the prayers, and the second to the evidence. At the close of the plaintiff’s case, the defendant offered a prayer, by which he sought to take the case from the consideration of the jury. This prayer will be considered in connection with the prayers offered at the conclusion of the case. The second exception is taken to the refusal of the Court to allow the appellant to state why he did not pay any rent for the leased property after the first of December, 1893.

We have not been referred to any authority which tends to sustain the relevancy or materialty of this question. It does not belong to that class of questions, to determine the relevancy of which it is necessary that it should have been answered. But under the issues in this case, the question of itself and by itself was properly disallowed. As said by the appellant’s attorney in his brief, “The forfeiture vcl non of the lease depended upon his act. not upon his motives.” It is admitted that no rent was paid after the date named, and if we correctly understand the statement of the counsel for the appellant, in this Court, it is not contended that the appellant had any valid excuse for not paying the rent due by him.

But in any event, we think no just reason has been assigned why the rent was not paid. We find no error in' the proposition of law submitted by the appellant for the instruction of the jury, and granted by the Court, which, together with the prayer of the appellees refused by the Court, constitute the third bill of exceptions. This prayer of the appellant presents the chief contention in this appeal. It is as follows : “ The defendant prays the Court to instruct the jury that the plaintiff is not entitled to recover, unless they find that the plaintiff demanded payment of the precise sum due on the most notorious part of the demised premises at a convenient time before sunset on the day it was due, and that of these facts there is no evidence.” If this prayer correctly states the rule of law which ought to obtain in this State in the forfeiture of a lease for the nonpayment of rent, it is quite clear that it has not been followed ⁶²⁸ in this case.

But we think the appellant has misconceived the true meaning and legal effect of the condition contained in his agreement of lease with Bonaparte. It will be seen, by reference to its terms, that a re-entry was not requisite to have entitled the lessor to determine the tenancy, for it is expressly provided thereon, that if the rent shall be for more than ninety days due and