Burritt v. Lunny

• Decision Date: 02 June 1916
• Citation: 97 A. 756,90 Conn. 491
• Court: Connecticut Supreme Court
• Parties: BURRITT v. LUNNY.

97 A. 756

90 Conn. 491

BURRITT

v. LUNNY.

Supreme Court of Errors of Connecticut.

June 2, 1916.

Error from City Court of Waterbury; William J. Larkin, Jr., Judge.

Action of summary process by Harriet M. Burritt against H. Thomas F. Lunny. Defendant tiled an answer and a special defense, to certain portions of which plaintiff demurred. Plaintiff also made a motion to strike out and a motion to separate. The demurrer was overruled, and the motions denied. Plaintiff refused to plead over, and judgment was rendered for defendant, and plaintiff brought a writ of error. No error.

Nathaniel R. Bronson, of Waterbury, for plaintiff in error. Frank P. McEvoy and Francis P. Guilfoile, both of Waterbury, for defendant in error.

RORABACK, J. The plaintiff in a summary process proceedings alleges these facts: On December 16, 1913, the defendant entered into the possession of the premises in question under a written lease from the plaintiff and Thomas F. Lunny. "Said lessee failed and neglected to pay the rent which became due and payable on the 1st day of February, 1916, nor has he since paid the same or any part thereof. Ten days have elapsed since said rent became due as aforesaid; said lease has, by virtue of the express stipulation therein contained, expired and terminated. Said lessee still neglects and refuses to quit possession of said premises to the complainant and still holds possession thereof. Said lessee in said lease waived all right to notice to quit possession." The defendant denied that the lease referred to in the complaint was a copy of the original, that he had failed to pay the rent, and that the lease had expired and terminated. A second defense read as follows:

"(1) For many years prior to December, 1913, the defendant was a tenant of said Harriet M. Burritt, and leased and occupied the premises described in said complaint.

"(2) At and during all of the time mentioned, prior to said December, 1913, the defendant paid the rent as agreed for said leased premises to said Harriet M. Burritt, by check of the defendant each month, and it was the custom between the defendant and said Harriet M. Burritt for the defendant to pay and for the said Harriet M. Burritt to receive said check each month in payment of said rent. The defendant's said check was actually so received and accepted by said Harriet M. Burritt as payment during each and every month for many years prior to said December, 1913.

"(3) At the time the lease, dated December 16, 1913. was made between H. T. F. Lunny and Harriet M. Burritt it was impliedly understood and agreed between the defendant and said Harriet M. Burritt that the defendant should continue to pay his monthly rent under the said lease, by defendant's check.

"(4) Upon the beginning of the new term as expressed in said lease, the defendant did so pay his monthly rent by defendant's check, the defendant continued to pay said Harriet M. Burritt, and the said Harriet M. Burritt accepted and received said defendant's check each and every month from December, 1913, to January, 1916. inclusive.

"(5) On the 7th day of February, 1916, the defendant tendered his check for the sum of $125, the same being the amount of rent in advance due to March 1, 1916. Said tender was made to N. R. Bronson, Esq., as agent of Harriet M. Burritt, but said agent refused to accept said check and return the same to the defendant."

The third defense made all the paragraphs of the second defense a part of this defense. The third defense also averred that:

"At the time said agent returned said check to the defendant, the said agent, N. R. Bronson, Esq., demanded that defendant pay said rent in 'money.'

"(7) Thereafter, on the 8th day of February, 1916, the defendant, acting by his attorney, Frank P. McEvoy, tendered to said N. R. Bronson, Esq., as agent of said Harriet M. Burritt, the sum of $125 in money, to wit, twelve $10 bills and one $5 bill, of United States currency, as payment of said rent.

"(8) Said N. R. Bronson, Esq., as agent, refused to accept said money.

"(9) The defendant then was, ever since has been, and still is, ready and willing to pay said rent, to wit, $125, to said Harriet M. Burritt, or to said N. R. Bronson, as agent."

It was also further alleged in a fourth defense that:

"All the paragraphs of the third defense are made corresponding paragraphs as part of this defense.

"(10) On the 23d day of February, 1916, the defendant, acting therein by his attorney, Frank P. McEvoy, tendered to said N. R. Bronson, Esq., as agent of the said Harriet M. Burritt, in United States treasury notes, the sum of $125 due for rent,...