Capital Garage Company v. Max L. Powell

• Decision Date: 05 October 1923
• Citation: Capital Garage Company v. Max L. Powell, 122 A. 423, 97 Vt. 204 (Vt. 1923)
• Parties: CAPITAL GARAGE COMPANY v. MAX L. POWELL ET AL
• Court: Vermont Supreme Court

122 A. 423

97 Vt. 204

CAPITAL GARAGE COMPANY v. MAX L. POWELL ET AL

Supreme Court of Vermont

October 5, 1923

May Term, 1923.

ACTION OF EJECTMENT.Pleas, the general issue and special pleas.Trial by jury at the September Term, 1922, Washington County Fish, J., presiding.Verdict and judgment for the plaintiff.The defendants excepted.The opinion states the case.

Judgment affirmed.

Max L. Powell, Hale K. Darling, and John W. Gordon for the defendants.

H C. Shurtleff for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

SLACK

This is an action of ejectment, commenced September 21, 1921, to recover possession of what is known as the Capital Garage in the city of Montpelier.The plaintiff, a Vermont corporation, claims title to the demanded premises under a lease from Thomas J. Heaphy, executed January 1, 1919.By the terms of that instrument, Heaphy leased to the plaintiff the premises in question for the term of five years from the date thereof, for the annual rental of eighteen hundred dollars, payable in installments of one hundred and fifty dollars at the end of each month, reserving the right, at his election, to terminate the lease if the lessee failed to pay the rent due at the end of any month for the space of thirty days.By their answer, the defendants, severally, challenge the plaintiff's title on the ground that it forfeited its lease to Heaphy on, or before, January 1, 1921.The defendant Powell says further, by way of answer, that after plaintiff forfeited its lease, and on January 1, 1921, Heaphy leased the premises in question to him, and that he occupied them under his lease, and not otherwise, until September 19, 1921.The defendants, Kenney and Chase, further answering say that, on September 19, 1921, Heaphy leased the premises to them, and that they have been, and now are, in possession under this lease, and not otherwise.The plaintiff had a verdict and judgment, and the case is here on defendants' exceptions.

Thomas J. Heaphy died in a hospital in New York City, October 27, 1921.Before leaving Montpelier to go to the hospital, he wrote a letter, addressed to his wife and his brother, John Heaphy, in which he said, in substance, among other things, that the plaintiff's lease had two years more to run.This part of the letter was held to be admissible when the case was here before.96 Vt. 145, 118 A. 524.On the retrial, after it appeared that John knew the contents of this letter, and that it had been destroyed by the widow of the deceased, he was permitted, subject to exception, to testify to that part of it above referred to.The only objection now urged against the admissibility of this evidence is that inability to produce the letter was not shown.This, as we have seen, is contrary to the facts.The exception is without merit.

After it appeared that the plaintiff took possession of the premises in question and paid rent, under its lease, John Heaphy testified, in substance, that the rent called for by plaintiff's lease had been paid ever since, subject to defendants' objection and exception that the witness "hadn't a right to express as a matter of conclusion that the money that they may have received was received as rent under this lease.Now that's the question, was the rent received under this lease, and we say that's a conclusion that he has no right to draw;" and he testified further, that the rent paid under that lease had been $ 150 a month ever since the lease was executed, subject to the objection that this was the witness's conclusion and that was a matter for the jury to decide on all the evidence.It should be borne in mind that the objection urged against the admissibility of this evidence is not that it was the witness's conclusion that the money was paid under plaintiff's lease, but that it was received under its lease.It was competent to show that the lessor treated money received by him as rent on plaintiff's lease, as tending to show that he had not declared a forfeiture of such lease, and this, too, irrespective of who paid such money, or for what purpose.See96 Vt. 145, 118 A. 524.That he treated such money as rent due under plaintiff's lease, if he did so treat it, was a fact and not a conclusion, and even though he so treated it as the result of a wrongful conclusion, its tendency to show that he had not declared a forfeiture (the only question on which it had any bearing) was the same.It was competent to show by anyone who had personal knowledge of the fact how the money was received and treated.That the witness had such knowledge does not appear to be questioned, and the evidence clearly tends to show such to be the fact.It appeared that he was intimately connected with Thomas' business affairs during the last years of the latter's life; that he not only knew about plaintiff's lease, but that he collected all, or most, of the rent received for the premises in question ever after that lease was executed, and kept the accounts relating thereto.

It appeared that when Powell took possession of the premises there was three months' rent in arrears.The defendants contend that, in these circumstances, the action of Heaphy in putting Powell into possession under an independent agreement between him and Powell was an enforcement of forfeiture of plaintiff's lease.But Heaphy could not assert a forfeiture of plaintiff's lease in that manner.Willard v. Benton, 57 Vt. 286.He must proceed according to the rule of the common law, unless he chose to bring ejectment; and if he resorted to ejectment, the plaintiff might relieve itself from the forfeiture by paying the rent in arrears before final judgment.G. L. 2130;Rosenberg v. Taft et al., 94 Vt. 458, 111 A. 583.The law abhors forefeitures, and will not enforce one when a tenant in arrears comes forward with the rent on demand, or if ejectment is brought, before final judgment therein.If a landlord could enforce a forfeiture simply by leasing the premises to another, when rent was in arrears, he could ignore the requirements of the common law, and, also, deprive the tenant of his right, under the statute, to redeem.

After it appeared from defendants' evidence that plaintiff failed to pay its annual license tax April 1, 1920, the defendant Powell was asked, on cross-examination, "Did you want to take any advantage of this Capital Garage Company's failure to pay its annual license tax to the State of Vermont, for one year?" and, subject to exception, he answered, "I waive none of my rights."Since Powell was a party, this was proper cross-examination.Moreover, it is not apparent how this evidence could have harmed the defendants as it was manifest throughout the trial that they intended to take such advantage of this circumstance as they were entitled to.

John Heaphy was permitted to testify in rebuttal, subject to exception, as follows: "Q.Did he"(meaning the lessor)"ever tell you that he wanted to sell that garage?A.No, no, he didn't say anything.Q.Did you ever hear him make any statement after the year 1918, or after January 1, 1918, as to whether he would rent that garage to anybody or not?A.Yes.Q.And when?A.Why it was right after the Burnell-Faulkner Co. got out of there.Q.What was it he said about letting the property to somebody else at that time?What did he say on that occasion about renting the garage to anybody else?A.He said that he couldn't agree to let it to anybody, because he didn't want to become involved in any litigation."These questions and answers are...