Talbot v. Citizens National Bank of Evansville

• Citation: 389 F.2d 207
• Decision Date: 30 January 1968
• Docket Number: No. 16438.,16438.
• Parties: George TALBOT, Jr., Plaintiff-Appellant, v. The CITIZENS NATIONAL BANK OF EVANSVILLE, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

389 F.2d 207 (1968)

George TALBOT, Jr., Plaintiff-Appellant, v. The CITIZENS NATIONAL BANK OF EVANSVILLE, Defendant-Appellee.

No. 16438.

United States Court of Appeals Seventh Circuit.

January 30, 1968.

Joseph B. Minor, Evansville, Ind., for plaintiff-appellant.

Willard C. Shrode, Evansville, Ind., for defendant-appellee.

Before HASTINGS, Chief Judge, and KNOCH, Senior Circuit Judge, and FAIRCHILD, Circuit Judge.

HASTINGS, Chief Judge.

Plaintiff-appellant George Talbot, Jr. appeals from a summary judgment entered in favor of defendant-appellee Citizens National Bank of Evansville on a complaint for damages for breach of a lease. Appellant also appeals from the denial of his motion for summary judgment.

Although appellant contends there were genuine issues of fact for trial, we find, after reviewing the record, no genuine dispute concerning a material fact.

In 1945, appellant's predecessor in interest, Talbot Corporation, leased space in an Evansville, Indiana shopping center to appellee for use as a branch bank. On December 12, 1952, Talbot Corporation and appellee executed a new lease which described the leased premises by metes and bounds, adding "commonly known and designated as 1925 Lincoln Avenue, together with any and all buildings and improvements located thereon." Appellant subsequently acquired the reversion.

The lease was for a term of fourteen years. It gave appellee the right to remove "all trade fixtures installed by it, including heating equipment * * *" at the termination of the lease and required appellee to remove a permanently-installed bank vault, if requested to do so by appellant. It further provided that upon termination all improvements "except furniture, trade fixtures and equipment which may be removed without substantial damage to the premises" should be surrendered by appellee.

As described in terms of metes and bounds, the leased premises consisted of the land occupied by a building and a 5.45 foot strip of land along the west side of the building. The 5.45 foot strip was occupied by a walk, which ran alongside the building, and a portion of a parking lot used by customers of appellee and other businesses in the shopping center.

In 1945 or 1946, a boiler and an air conditioner were installed, at appellee's expense, in the leased building. These units were connected to the building's heating and cooling systems.

On March 7, 1966, appellee notified appellant that it did not intend to renew the lease. On July 27, appellant requested appellee to remove the bank vault.

Appellee discontinued its banking operations on the leased premises on August 12, 1966, three and one-half months before the expiration of the lease. Appellee's banking facilities were moved to a new location approximately fourteen blocks away.

Pursuant to an agreement with appellant, Old National Bank of Evansville installed a mobile banking unit at appellant's shopping center on August 15, 1966. The mobile banking unit encroached on the 5.45 foot strip of land west of the building on the leased land.

On the day the mobile banking unit was installed, appellee's attorney, in the presence of appellant's attorney, informed appellant by telephone that the mobile banking unit had been installed and requested that it be removed before noon on August 17,¹ two days later.

Appellant did not cause the mobile banking unit to be moved.

By letter of August 19, 1966, appellee stated to appellant that appellant's action "in permitting a competitor bank to move a mobile trailer and to erect improvements on our leased premises, and parking lot facilities" constituted a breach of its lease. Appellee expressed the belief that the breach was substantial and notified appellant that it elected to rescind the lease and vacate the leased premises. Appellant received such letter on August 23.

Appellee promptly vacated the premises, removing the boiler and air conditioner. It made no further rent payments and did not remove the vault.

Appellant did not request Old National Bank to move its mobile banking unit until November 15, 1966, after a survey indicated that the unit encroached on the premises described by metes and bounds. The request was ignored by Old National.

Appellant filed its action on December 1, 1966, asking that the lease be forfeited and that damages in the amount of $28,900 be awarded for the expense of removing the vault, the unpaid rent, and the deprivation of use of the property while the vault was being removed. By a supplemental complaint filed January 10, 1967, appellant requested damages in the amount of $2,517.50 for the removal of the boiler and air conditioner.

Appellee moved for dismissal of the cause on December 20, 1966, for failure to state a claim for which relief could be granted, attaching an affidavit to the motion. Appellant moved for summary judgment on March 24, 1967.

The trial court treated appellee's motion as a motion for summary judgment, as provided by Rule 12(b), F.R.C.P., 28 U.S.C.A., and on June 29, 1967, entered summary judgment for appellee and denied appellant's motion for summary judgment. The district court concluded that appellant's action in permitting a third person to take possession of part of the leased premises was a material breach of the lease, and that appellee effected a lawful rescission by its letter of August 19. The court held that the rescission terminated appellee's obligations to pay rent and to remove the vault. Finally, it held that the removal of the boiler and air conditioner was authorized by the express terms of the lease.

Appellant advances several arguments for reversal of the judgment below.

He contends the description of the leased premises is ambiguous and that in construing the lease reference may be made to extrinsic evidence of the parties' intent. Their intent, he asserts, was that the leased premises include only the building and the land occupied by it.

Appellant finds ambiguity by comparing the metes and bounds description with the phrase "commonly known and designated as 1925 Lincoln Avenue." He contends that the phrase limits the leased premises to the building and the land it occupies.

Appellant's argument on this proposition is without merit. Under Indiana law, which governs this diversity case, a general descriptive statement in a conveyancing instrument yields to a particular and specific description. Tolleston Club of Chicago v. Clough, 146 Ind. 93, 43 N.E. 647 (1896); Gano v. Aldridge, 27 Ind. 294 (1866); Jacqua v. Heston, 81 Ind.App. 142, 142 N.E. 874 (1924). The term "1925 Lincoln Avenue" is a general description and must yield to the description in metes and bounds.

Appellant further argues that the encroachment on the 5.45 foot western strip of the leased premises did not entitle appellee to rescind the lease and abandon its obligations under the lease. In essence, appellant's position is that the district court applied incorrect principles of law and that appellee is not entitled to summary judgment on the facts in the record.

Appellee contends that, under Indiana law, if a lessor dispossesses or evicts a lessee from any portion of the leased premises, the lessee may elect to rescind the lease and abandon his lease obligations. These principles were apparently applied by the district court.

The pertinent Indiana law is contained in several three-quarter century old cases, only one of which was cited by the parties. These cases indicate that a lessee who is evicted from a material part of the leased premises may elect to abandon the whole premises and terminate his obligation to pay rent. Talbott v. English, 156 Ind. 299, 305-308, 59 N. E. 857 (1901); Hoagland v. New York, Chicago and St. Louis Railway Co., 111 Ind. 443, 446, 12 N.E. 83, 13 N.E. 572 (1887); Avery v. Dougherty, 102 Ind. 443, 447-448, 2 N.E. 123 (1885); Miller v. Michel, 13 Ind.App. 190, 191, 41 N.E. 467 (1895).

A transitory and fleeting interference by the lessor with the lessee's possession is not an eviction, but a mere trespass, for which the lessee is entitled to damages. Talbott v. English, supra, 156 Ind. at 307, 59 N.E. 857; Avery v. Dougherty, supra, 102 Ind. at 447, 2 N. E. 123; Miller v. Michel, supra, 13 Ind. App. at 191, 41 N.E. 467.

To constitute an eviction the act of the lessor must constitute an expulsion or dispossession of the lessee (actual eviction) or an interference with possession so serious that it deprives the lessee of the beneficial enjoyment of the leased premises (constructive eviction). Talbott v. English, supra, 156 Ind. at 305-306, 307-308, 59 N.E. 857. The acts of the lessor must constitute an assertion of right or title. Talbott v. English, supra, 156 Ind. at 307, 59 N.E. 857; Avery v. Dougherty, supra, 102 Ind. at 447-448, 2 N.E. 123; Miller v. Michel, supra, 13 Ind.App. at 191, 41 N.E. 467.

We have found no Indiana cases, and none has been cited, considering the effect of an eviction on a lessee's obligations other than that to pay rent. The authorities indicate that eviction does not...