O'Leary v. Skilton

• Decision Date: 12 May 1925
• Citation: 129 A. 45,102 Conn. 475
• Parties: O'LEARY v. SKILTON.
• Court: Connecticut Supreme Court

129 A. 45

102 Conn. 475

O'LEARY v. SKILTON.

Supreme Court of Errors of Connecticut.

May 12, 1925

Appeal from District Court of Waterbury; Walter D. Makepeace, Judge.

Action by Minnie A. O'Leary against Elton R. Skilton to recover rent due under lease. Judgment for defendant, and plaintiff appeals. Error; judgment set aside, and cause remanded, with directions.

James M. Lynch, of Waterbury, for appellant.

Richardson Bronson, of Waterbury, for appellee.

MALTBIE, J.

The plaintiff brought her action, alleging that she had on April 10, 1924, leased certain premises to the defendant by a written lease, a copy of which is annexed to the complaint that the defendant entered into possession of the premises pursuant to the lease; and that he had failed to pay the rent due on July 1, 1924. The lease purported to be one for the term of two years from March 10, 1924, for an annual rental payable in monthly installments, and to be executed by " Minnie A. O'Leary, by Arthur F. O'Leary, her agent," and by the defendant. The defendant in his answer admitted that the rent due on July 1, 1924, had not been paid, but denied the other allegations of the complaint. The plaintiff called one witness, O'Leary; upon the conclusion of his direct examination, during which the lease was introduced in evidence, both parties rested, and thereupon the trial court gave judgment for the defendant. It has found that the lease was executed by O'Leary, who signed the plaintiff's name as it appears upon the copy annexed to the complaint; that there was no evidence tending to show the existence of the relationship of principal and agent between him and the plaintiff, nor was there produced a written power of attorney; and that, while the defendant at one time occupied the premises, it did not appear that he was in possession at the time of the trial, or in July. The trial court reached the conclusion that, in the absence of evidence showing agency in O'Leary to represent the plaintiff, the purported lease was not the act of the plaintiff, and was inoperative and void. The plaintiff has had all the testimony certified to this court, and now seeks to have all of the findings of the court stricken out except that as to O'Leary's execution of the lease, and to have inserted certain paragraphs from her draft finding to the effect that the defendant entered into possession of the property under the lease and has not surrendered it, and that the rent falling due on July 1, 1924, has not been paid.

The court but stated the plain truth when it found that there was no evidence introduced of any precedent authority in O'Leary to execute the lease, or of any power of attorney held by him from the plaintiff. Whether or not the defendant was shown to be in possession of the property at any time is, at least as the case is here presented, an immaterial circumstance. The action being upon the covenant of the lease obligating the defendant to pay the rents specified, proof of that covenant and a failure on his part to pay would establish a cause of action, unless he could show that he was prevented from taking possession by some act or fault of the plaintiff. Miller v. Benton, 55 Conn. 529, 545, 13 A. 678; Douglass & Easton v. Branch Bank, 19 Ala. 659, 661; Stier v. Surget, 10 Smedes & M. (18 Miss.) 154; Birckhead v. Cummins, 33 N.J.Law, 44; 2 Chitty, Pleading (16th Am. Ed.) p. 184; 2 Taylor, Landlord & Tenant, § 624; Practice Book, p. 327, form 5. Nonpayment of the rent due July 1st being admitted in the pleadings, there is no occasion to find that fact. Plaintiff's claims for the correction of the finding are without merit.

The two questions vital to the plaintiff's case are these: Is she debarred of recovery, first, because O'Leary had no authority to represent her at the time he executed the lease or, secondly, because of a failure to meet the formal requisites of the statutes as regards a lease for more than one year? The condition of the record makes difficult our approach to these issues. Thus it is not found that the defendant executed the lease; this is, however, clearly an oversight. It has been assumed by both parties in their arguments before ...