Beck v. Troiano, 2070.

• Decision Date: 24 January 1958
• Docket Number: No. 2070.,2070.
• Citation: 138 A.2d 492
• Parties: James Z. BECK, Appellant, v. Pat TROIANO, Appellee.
• Court: D.C. Court of Appeals

138 A.2d 492

James Z. BECK, Appellant, v. Pat TROIANO, Appellee.

No. 2070.

Municipal Court of Appeals for the District of Columbia.

Submitted October 28, 1957.

Decided January 24, 1958.

Rehearing Denied February 4, 1958.

Mark P. Friedlander and Jack Politz, Washington, D. C., for appellant.

Joseph H. Schneider, Washington, D. C., for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

HOOD, Associate Judge.

This appeal is from a judgment for $2,500, representing five months' rent of certain commercial property. The property was rented for a term of eleven months at a rental of $500 a month. The term expired January 31, 1956. In the previous December the tenant closed his business and apparently removed from the premises all his property except certain plumbing and trade fixtures. The plumbing fixtures were not removed until April 1956 and the trade fixtures remained on the premises until early in May 1956 when they were sold at public auction. No rent was paid for any period after December 1 and this action sought six months' rent for the period from December 1, 1955, to May 31, 1956. The trial court allowed a recovery for five months' rent.

It was the tenant's contention that he surrendered and the landlord accepted possession in December 1955. The trial court resolved this disputed issue of fact against the tenant, and found that the tenant by failing to remove the fixtures had retained control of the premises until the sale in May 1956. Whether the failure to remove these fixtures, which are not described in detail in the record, constituted a holding over by the tenant, was a question of fact. The law on the subject is well stated in 51 C.J.S. Landlord and Tenant § 75, where it is said:

"Leaving property on the premises may, but does not always, constitute a holding over, and whether the leaving of property or a part of it on the premises by the tenant does or does not constitute a holding over is usually a question of fact to be determined in the light of all the surrounding circumstances. A holding over does not result from the leaving of property which is practically worthless or which is left merely for the convenience of the incoming tenant, nor does it result from the leaving of a small amount of the property on the premises without any intention of retaining or enjoying possession of the premises."

The tenant, however, argues that because the landlord obtained a judgment for possession on February 10, 1956,...