Christopher v. Shapiro, 960.

• Decision Date: 21 November 1950
• Docket Number: No. 960.,960.
• Citation: 76 A.2d 781
• Parties: CHRISTOPHER v. SHAPIRO.
• Court: D.C. Court of Appeals

Page 781

76 A.2d 781

CHRISTOPHER v. SHAPIRO.

No. 960.

Municipal Court of Appeals for the District of Columbia

Aruged October 2, 1950.

Decided November 21, 1950.

Robert T. Smith, Washington, D. C., for appellant.

Mark P. Friedlander, Washington, D. C., for appellee.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

CLAGETT, Associate Judge.

Describing defendant Jacob Shapiro as a tenant by sufferance, plaintiff Cost Christopher sued for possession of two vacant lots described as 3120-22 Georgia Avenue, N. W., for nonpayment of rent. He also demanded a money judgment for the amount of rent claimed to be due. The case was tried to a jury, which returned a verdict for the landlord for possession and for rent in the amount of $437.50. After the verdict and before entry of judgment thereon, defendant tendered and plaintiff accepted a certified check for the full amount found to be due. The court thereupon, without entering judgment on the verdict, dismissed the action. From such dismissal, plaintiff appeals.

The sole controversy arose as follows: As originally filed the suit was for the nonpayment of rent to May 1, 1950, and was predicated upon a thirty days' notice to quit required by the statute to terminate a tenancy by sufferance¹ which expired on May 1, 1950. During trial and without objection by defendant, plaintiff was permitted to amend his complaint so as to claim an additional month's rent to June 1, 1950. The verdict of the jury and the accepted tender after verdict also included rent up to June 1, 1950. In consequence defendant invoked the rule, well established in this jurisdiction, that the receipt of rent by a landlord, after notice to quit, for a new term or part thereof, amounts to a waiver of his right to demand possession under the notice.² Plaintiff on the contrary urges that by failing to object to the amendment to the complaint defendant was estopped from raising the question of waiver and that in any event the trial court was bound to give judgment in accordance with the jury's verdict and thereby render res judicata the question of the right to possession of the lots.

Although the complaint, supported by plaintiff's evidence, claimed possession only for the nonpayment of rent, defendant in his answer and supporting testimony denied that he had agreed to rent the lots in question separately but claimed the right to store some of his trucks in the rear of these lots without additional charge under the terms of a written lease between the parties of a building on an adjoining lot at 3118 Georgia Avenue, N. W. The court's instructions to the jury which were affirmatively accepted by both parties made it clear that the jury was to pass upon two separate questions: first, whether defendant was entitled to possession of the rear portion of the lots at 3120-22 Georgia Avenue without payment of rent beyond that already charged for 3118 Georgia Avenue; and, second, what...