Grazia v. Anderson.
Decision Date | 10 November 1948 |
Docket Number | No. 701.,701. |
Citation | 62 A.2d 194 |
Parties | DE GRAZIA v. ANDERSON. |
Court | D.C. Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from the Municipal Court for the District of Columbia, Civil Division.
Action by Joseph C. Anderson against Fred De Grazia for possession of premises. From a judgment for plaintiff, the defendant appeals.
Reversed with instructions to grant a new trial.
Joseph J. Lyman, of Washington, D. C. (Anthony L. Montaquila, of Washington, D. C., on the brief), for appellant.
Herman Miller, of Washington, D. C., for appellee.
Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.
A tenant brings this appeal from a judgment of possession based on a verdict directed against him on his opening statement. 1 The property involved is a barber shop of which defendant had been a tenant for many years. Plaintiff sued for possession based on a notice to quit and alleged that defendant was a tenant at sufferance, and such was the claim plaintiff's counsel made in his opening statement. Defense counsel, in his opening statement to the jury, said, in part:
On plaintiff's motion the trial judge ruled that this statement did not outline a defense, refused to permit any testimony, and directed a verdict for plaintiff.
We have previously said that to decide a case on an opening statement ‘is an extreme measure and trial judges should invoke it most cautiously, for the opening statement is to be construed liberally and favorably to plaintiff's case.' 2 We pointed out that ‘only when it is clear in advance that plaintiff is absolutely precluded from a recovery may the trial court decide the case upon the opening statement.’ We quoted from Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 489, 78 L.Ed. 882, as follows:
Applying these tests here we must rule that in this case it was improper to direct a verdict on the opening statement.
Defendant was asserting an equitable defense. He proposed to prove that he had a definite agreement with the plaintiff-landlord whereby in consideration of an increased rental he could remain in possession of his barber shop for the remainder of the landlord's term. He stated that the plaintiff's prime lease with his own lessor ran until June 1949 subject to a provision whereby it could be terminated on ninety days notice. He said he would prove that upon plaintiff's representations he made substantial improvements to the premises ‘predicated upon the belief that he would be permitted to stay for the remaining portion of the lease.’ This single recital in the opening statement was enough to overcome plaintiff's motion for a directed verdict and entitled him to present his defense to the jury.
Long ago, in the leading case of Kresge v. Crowley, 47 App.D.C. 13, it was held that despite the statute of frauds 3 one who has been induced to alter his position and make improvements on property based on a parol contract may enforce such contract in the courts. That principle has also been enunciated in later cases. 4 Appellee argues that the statement that the improvements made were ‘substantial’ is incorrect, and that the improvements were in fact ‘insignificant and inconsequential.’ But that raises an issue of fact which had no place on the motion to direct a verdict and has no place on this appeal. Here as in the lower court the statement...
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...227, rehearing denied, 73 A.2d 718 (1950), aff'd sub nom. Sobel v. Diatz, 88 U.S.App.D.C. 329, 189 F.2d 26 (1951). In DeGrazia v. Anderson, D.C.Mun.App., 62 A.2d 194 (1948), it was stated (at Long ago, in the leading case of Kresge v. Crowley, 47 App.D.C. 13, it was held that despite the st......
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