Calechman v. Great Atlantic & Pacific Tea Co.

• Decision Date: 12 July 1935
• Citation: 120 Conn. 265,180 A. 450
• Parties: CALECHMAN et al. v. GREAT ATLANTIC & PACIFIC TEA CO. et al.
• Court: Connecticut Supreme Court

180 A. 450

120 Conn. 265

CALECHMAN et al. v. GREAT ATLANTIC & PACIFIC TEA CO. et al.

Supreme Court of Errors of Connecticut.

July 12, 1935

Case Reserved from Court of Common Pleas, New Haven County; Robert L. Munger, Judge.

Action for recovery of rent by B. Calechman and another against the Great Atlantic & Pacific Tea Company and another which filed a cross-complaint brought to court of common pleas and by agreement of the parties reserved by that court for consideration and advice of Supreme Court of Errors.

Judgment in accordance with opinion.

George W. Crawford, of New Haven, for plaintiffs.

Benjamin Slade and Louis Weinstein, both of New Haven, for defendant Mary Garris.

Arthur W. Chambers, of New Haven, for named defendant.

Argued before MALTBIE, C.J., and HINMAN, BANKS, and AVERY, JJ.

HAINES, Judge.

The plaintiff brought this action to recover a certain sum claimed to be due him December 1, 1934, for rent for that month under a lease made by him to the named defendant. The latter filed an answer and a cross-complaint alleging that it was holding rent for five months due under the lease beginning with that due December 1st and extending to the time the pleading was filed, and that Mary Garris was claiming all this rent under a garnishment served on it November 27th; that the plaintiff was claiming the rent due December 1st; that on December 17, 1934, the plaintiff had assigned all his interest under the lease to Mark D Chestney, who was claiming all rent subsequent to that due December 1st; that the named defendant prayed inter alia for a judgment of interpleader and a declaratory judgment. Subsequently, Mary Garris was permitted to join as a party defendant and filed an answer admitting the garnishment of the rent and her claim as stated in the named defendant's cross-complaint. Chestney was joined as coplaintiff by stipulation.

On November 27, 1934, the tea company was occupying the leased premises, under a second one year extension of the above described lease, i. e., from September 1, 1934, to August 31 1935, and all rents had been paid by the tea company to December 1, 1934, at which time another payment of $250 was to become due, for the December tenancy. On November 27, 1934, defendant Garris, in an action of debt on judgment against Calechman, garnisheed the tea company as the debtor and trustee of Calechman for $2,500.

Thereafter on December 17, 1934, Calechman assigned to the plaintiff Chestney, " for one dollar and other valuable considerations *** all rents now due and/or hereafter accruing from said property, during the term of this assignment," which was provided to be for the period to September 1, 1935. Calechman claims the $250 rental payable December 1st, Garris claims to have the same under attachment, together with the payments due the first of each month for the remainder of the tea company's one year term, viz., $2,000, an aggregate of $2,250, while Chestney claims all payments due after that of December 1st, a total of $2,000.

The pertinent provisions of General Statutes, § 5763, are that the process of garnishment lies as incident to an action " when a debt is due from any person to" the defendant, and that from the time of leaving the copy of the process with the garnishee, " any debt due from" him to the defendant, " not exempt from execution, shall be secured in the hands of such garnishee to pay such judgment as the plaintiff may recover." The garnishment on November 27th was effective to hold the $250 payable December 1st only if that sum on the former date was a " debt due" from the tea company to Calechman.

We understand the claim of the defendant to be, in legal effect, that the moment the tea company entered into possession of this property under the one year lease, a " debt" of $3,000 became " due," and was " owed" to Calechman by that company, even though payable monthly only, during that year; that the balance of this $3,000 not paid on November 27th was an existing debt from the payment of which the tea company could only escape by the occurrence of some subsequent event, as, e. g., by ouster, unavoidable accident, or fire, or by some provision in the lease of equal effect.

It is obvious that if A owes B $3,000 for goods which he has bought and accepted from him, it is an existing debt which is due to B. even though payable not presently, but in twelve monthly installments. We have held that a fire loss, even though unliquidated, and necessarily only payable at a later date, is an existing debt, owing from the insurer to the insured. Knox v. Protection Ins. Co., 9 Conn. 430, 25 Am. Dec. 33; Finch v. Great American Ins. Co., 101 Conn. 332, 125 A. 628, 38 A.L.R. 1068; Parker, Peebles & Knox v. El Saieh, 107 Conn. 545, 141 A. 884, 59 A.L.R. 1424.

In the common form of lease, the obligation of the lessee to pay rent is a contingent one, made absolute only by the use and enjoyment of the property, and upon the deprivation of this right by unavoidable accident or a contingency of like nature, his liability for rent extends only to that time. This result is independent of periods fixed in the lease for actual payment to the lessor, and in the absence of any stipulated period, the rent does not become payable until the lessee has enjoyed the possession for the full term of the lease. Where, under the terms of the lease, the rents are made payable at the end of fixed periods during the term, the possession and enjoyment must have continued to the end of each period.

A leading case which discusses the question with clarity is found in one of the early reports in Massachusetts: " A covenant to pay rent quarterly creates no debt or legal demand for the rent, until the times stipulated for payment arrives. The rent may never become due. The lessee may quit the premises, with the consent of the lessor; or he may assign over his term with such consent, so as to discharge himself from rent; or he may be evicted by a title paramount to that of his lessor; in either of which cases he will be discharged from the operation of his covenants. It is not the case of debitum in præ senti solvendum in futuro, which is subject to attachment by the statute; but is a contingency, which cannot be attached. *** Partridge could not be lawfully adjudged the trustee of Wood, for any rent, which had not become due at the time the writ was served upon him; for all beyond that was contingent." Wood v. Partridge, 11 Mass. 488, 493. This was followed by Boardman v. Osborn, 23 Pick. (40 Mass.) 295, page 299, wherein it was said: " Rent is a sum stipulated to be paid for the actual use and enjoyment of another's land, and is supposed to come out of the profits of the estate. The actual enjoyment of the land is the consideration for the rent which is to be paid, and, therefore, if the lessee is evicted before the rent becomes due, in whole or in part, it is a good answer to a claim for rent, by an action of debt or covenant, or by distress. 1 Saunders, 204, note. From this it seems clear, that although there be a lease, which may result in a claim for rent, which will constitute a debt, yet no debt accrues until such enjoyment has been had." In the case of Deane v. Caldwell, 127 Mass. 242, there is a full concurrence in this view.

The distinction between an obligation to pay a sum of money and the obligation of the lessee before enjoying the possession is clearly drawn in a very early case in Pennsylvania, Bank of Pennsylvania v. Wisc, 3 Watts, 394, 402: " But surely it was a great mistake in the...