Howe v. Frith

• Decision Date: 06 April 1908
• Citation: 95 P. 603,43 Colo. 75
• Parties: HOWE v. FRITH.
• Court: Colorado Supreme Court

95 P. 603

43 Colo. 75

HOWE v. FRITH.

Supreme Court of Colorado

April 6, 1908

Appeal from District Court, City and County of Denver; F. T Johnson, Judge.

Action by Hillian Frith against Charles H. Howe for damages for violation of the covenants of a lease. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

W. C. Kingsley and Richard McKnight, for appellant.

C. C Brown, for appellee. mAXWELL, J.

Appellant Howe, by a written lease granted appellee, Mrs. Hillian Frith, a lease of three rooms on the second floor of a business block in Denver for the purpose of conducting a millinery business, for the term of one year from January 1 1902, at a monthly rental of $55, to be paid in advance on the 1st day of each month, lessor agreeing to furnish heat to the apartments. The lease contained the usual covenants, and further provided that if any part of the rent should remain unpaid when due, or any default should be made by the lessee in any of the covenants by her to be kept, the lessor should have the right to declare the term ended, and enter into possession of the premises, with or without process of law, and expel and remove the lessee, using such force as might be necessary, and this without first making any demand for the rent or giving any notice that the lease was forfeited, and that no action of forcible entry, unlawful detainer, trespass, or like action should be brought by the lessee in case the lessor should forcibly dispossess her of the premises under the terms of the lease. It further provided that, if at any time the term should be ended at the election of the lessor, the lessee would surrender possession peaceably immediately upon such termination, and that, if the lessee should remain in possession after notice of any default, or after termination of the lease in any of the ways provided, she should be deemed guilty of forcible detainer under the statute, subject to all the conditions named in the lease, and to eviction and removal, forcibly or otherwise, with or without process of law. The complaint, after setting forth the lease, alleged, in substance, that the premises were entered only by means of a hallway on the first floor leading from the street and up a flight of stairs to the second floor, and thence along and through a hallway to appellee's rooms; that appellee rented the premises for the purpose of carrying on a millinery business, and that the principal part of her sales were made during the months of September, October, and November, and the same number of months during the spring; that October 1, 1902, appellant, without appellee's knowledge, and in violation of the covenants in the lease, tore up the stairway leading to the plaintiff's rooms, as well as the partition and plaster of the hallway, rebuilt the stairway, and again tore it out and rebuilt it, removing the plaster and replastering, and thereby, for 21 days, deprived plaintiff and her customers of ingress to and egress from the leased premises, causing plaster, moisture, etc., to be taken and carried into her rooms, thereby damaging her goods and furniture; that at that time the plaintiff was carrying a $5,000 stock of goods, manufactured and in the course of being manufactured, of a delicate nature; that in tearing down said partition and plaster lime dust, dirt, and moisture were carried into plaintiff's apartments and upon her goods, damaging them, and by reason of these conditions during 21 days, from the 1st day of October, plaintiff's customers were unable to get to her place of business; that in violation of the terms of the lease appellant on November 4, 1902, willfully shut off the heat from plaintiff's apartments, and at great expense she was obliged to and did procure oil stoves for heating purposes; that while the heat was so shut off plaintiff took a severe cold, and ever since was sick, to her great damage; and that by reason of the premises she suffered $3,000 damages. The answer admitted the execution of the lease, that the stairs and halls referred to in the complaint were the only means of ingress to and egress from the apartments, denied all other allegations of the complaint, and counterclaimed for three months' rent and damages to the premises. The reply put in issue the counterclaim. Trial to a jury resulted in a judgment against appellant for $1,800, from which is this appeal.

From the above statement of the complaint it appears that plaintiff sought damages upon three grounds: (1) Damages to her stock and furniture; (2) loss of profits; (3) damages by reason of expense incurred, illness, and physical suffering caused by shutting off the heat from the apartments.

It will be noticed that the complaint does not specify the amount of damages suffered from any one of the above causes; and, as the verdict and judgment is for a lump sum, and as we have no means of knowing what influenced the jury in arriving at its verdict, if evidence was admitted over the objection of appellant in support of any one of the grounds upon which appellee relied, which was not...