D'Agostino v. Sheppard

• Decision Date: 19 October 1925
• Docket Number: No. 3.,3.
• Parties: D'AGOSTINO et al. v. SHEPPARD et al.
• Court: New Jersey Supreme Court

130 A. 520

D'AGOSTINO et al.

v. SHEPPARD et al.

No. 3.

Court of Errors and Appeals of New Jersey.

Oct. 19, 1925.

Suit in ejectment by John D'Agostino and another against Harper D. Sheppard and another, trading as Sheppard & Myers. Judgment for defendants, and plaintiffs appeal. Reversed.

John C. Reed and Clarence L. Cole, both of Atlantic City, and Robert H. McCarter, of Newark, for appellants.

Bourgeois & Coulomb, of Atlantic City, for respondents.

MINTURN, J. The suit was in ejectment. George Graham while owner of the Maharba apartment house in Atlantic City, consisting of 54 apartments and 4 stores, leased to one Von H. Herr, on March 29, 1920, for the term of five years, with a privilege of renewal for five years, at an annual average rent of $39,000. Herr accepted the tenants in possession, but subsequently sublet one of the stores to Sheppard & Myers, the defendants, for one year, beginning May 1. 1921, with a privilege of renewal for two years, and thereafter for a further privilege of two years.

On October 21, 1921, Herr called upon Sheppard & Myers, and informed them that his pecuniary condition would be improved if they would advance four years rent, and thereby exercise their double privilege or option, and proposed that they pay him $10,000, less 12 per cent. discount. On November 21st, Herr and Graham canceled their lease, the latter forcing the cancellation because of alleged breach for nonpayment of rents, taxes, and other charges. Graham admits that Herr at that time gave him the names of some of the tenants, who had paid him rent in advance, but the names of these defendants were not among them. The amount thus paid was stated by Herr to be about $4,000, whereas the fact was that excluding defendants' payment. Herr had received $6,000. On May 15, 1922, Graham sold the apartments to the plaintiffs, and on closing title a rent rebate of $104.16 being one-half of defendants' monthly rent was made to plaintiffs by Graham. Defendants have been in possession since April, 1921, when they accepted their lease from Herr.

A remarkable and unexplained feature of the case is that after Herr had obtained the advanced discounted rents from the tenants, Graham in some mysterious manner continued to receive the stated rent of the apartments until he sold to these plaintiffs, when the payments on March, 1923, ceased, as a result of which the plaintiffs brought this suit to recover possession. The verdict was for the defendants, and plaintiffs appealed.

The main contention in the case is that, upon this state of facts instead of directing a verdict for the plaintiffs, the learned trial court sent the case to the jury, for the purpose of determining whether the cancellation of the Graham-Herr lease was voluntary on Herr's part, upon the theory that if Graham voluntarily accepted by...