Lay v. Bennett

• Decision Date: 22 January 1894
• Citation: 35 P. 748,4 Colo.App. 252
• Parties: LAY v. BENNETT et al.
• Court: Colorado Court of Appeals

35 P. 748

4 Colo.App. 252

LAY v. BENNETT et al.

Court of Appeals of Colorado

January 22, 1894

Appeal from Arapahoe county court.

Action by Bennett & Meyers against F.H. Lay. Judgment for plaintiffs. Defendant appeals. Reversed.

Thomas H. Hardcastle and John G. Taylor, for appellant.

Benedict & Phelps and Harry C. Davis, for appellees.

THOMSON J.

This is an action for the recovery or rent. On the 19th day of August, 1890, Bennett & Meyers, appellees, leased to F.H. Lay certain rooms on the second floor of their three-story building on the corner of Seventeenth and Stout streets in the city of Denver, for the term of two years. Lay occupied the rooms with his family, consisting of his wife and child until the 19th day of July, 1891, when he abandoned them, and never returned. This suit is for rent which accrued between the 19th day of July and the 5th day of October, 1891. The defense is, conduct of plaintiffs amounting to an eviction. The evidence is that the third story of the building was occupied by lewd and disorderly female tenants of the plaintiffs, who were in the habit of receiving male visitors that the occupants and their visitors indulged in boisterous and disorderly conduct, jumping upon the floor, screaming singing, and using profane and obscene language, until a late hour in the night, breaking the sleep of defendant and his family, depriving them of the beneficial enjoyment of the premises, and giving the building an unsavory reputation. The defendant made frequent complaints to the plaintiffs of the character and conduct of these tenants; and in January, 1891, the plaintiffs caused them to remove, and supplied their place with men. While the rooms were so occupied, there was no noise, and the defendant was undisturbed; but in March, 1891, the men vacated the building, the women were restored, and the unseemly noise and disturbance recommenced, and continued until the defendant, unable longer to endure the invasion of his peace, abandoned the premises. During this last period he repeated his complaints several times to the plaintiffs, who promised again to eject the obnoxious characters, but nothing in that direction was ever done. The foregoing facts are undisputed, and, if they constitute a defense to the action, judgment should have been for the defendant. If they are not a defense, the plaintiffs were entitled to judgment for $220.50, which was the exact amount due. The judgment should have been for this amount or for nothing; but the court, by some process peculiar to itself, arrived at the conclusion that the plaintiffs ought to have $130, and accordingly rendered the judgment from which this appeal is taken. There is nothing in the record to justify this judgment. It is absolutely without support from any evidence in the case, and is clearly and unmistakably erroneous. The evidence gives rise to a question which it is necessary to dispose of, to the end that upon a retrial of the case the rights of the parties may be intelligently settled. The answer to this question will determine whether the facts in evidence may be shown in bar of the action for rent. The authorities are all agreed that the eviction of a tenant from the demised premises by title paramount or by the landlord is a bar to any demand for rent, because it deprives him of the consideration for which rent was to be paid. In many of the cases in which this doctrine was announced there was an actual dispossession of the lessee by the lessor; but there is also an agreement among the cases that to constitute an eviction which will bar or suspend rent a direct or physical expulsion is not necessary, and that any act willfully done by the landlord, which has the effect of driving the tenant from the premises, amounts to, and may be treated as, an eviction. As to what conduct on the part of the landlord will justify the tenant in abandoning the premises and interposing the plea of eviction to an action for the recovery of subsequently accrued rent, there has been considerable adjudication; and an examination of some of the leading cases will materially aid us, not only in ascertaining the law, but in applying it to the facts before us.

In Dyett v. Pendleton, 8 Cow. 727, the facts, as stated by Crary, Senator, were that the plaintiff introduced into the house, certain rooms in which had been leased to the defendant, divers lewd women, who made a great deal of indecent noise and disturbance, disturbing the defendant and other persons sleeping in the house, bringing odium and infamy upon the house as a place of ill fame, and compelling the defendant, as a consequence of such practices, to leave the premises, to which he did not return. The court held that proof of these facts ought to have been received, because they tended to prove a constructive eviction, which would exonerate the defendant from the payment of rent. This case gave rise to considerable discussion, and was the subject of more or less comment in a number of adjudicated cases. In Royce v. Guggenheim, 106 Mass. 201, Gray, J., holding that it was unnecessary to rest the judgment of his court upon that case, remarks concerning it that it has since been considered, even in New York, an extreme case, and refers to Etheridge v. Osborn, 12 Wend. 529; Ogilvie v. Hull, 5 Hill 52; Gilhooley v. Washington, 4 N.Y. 217. And in the opinion in De Witt v. Pierson, 112 Mass. 8, the following occurs: "The case of Dyett v. Pendleton, 8 Cow. 727, is relied upon by the defendant. This has been called an extreme case, and it has been modified, if not overruled, by later decisions in New York; and this court declined to rest its judgment upon it in...