Musco v. Torello

• Decision Date: 03 April 1925
• Citation: 102 Conn. 346,128 A. 645
• Court: Connecticut Supreme Court
• Parties: MUSCO v. TORELLO.

128 A. 645

102 Conn. 346

MUSCO v. TORELLO.

Supreme Court of Errors of Connecticut.

April 3, 1925

Appeal from City Court of New Haven; Eliot Watrous, Judge.

Action by Joseph Musco against Joseph Torello. Verdict directed for defendant, and plaintiff appeals. No error.

Alfred E. DeCapua, of New Haven, for appellant.

Franklin Coeller, of New Haven, for appellee.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER and MALTBIE JJ.

WHEELER, C.J.

The plaintiff offered evidence to prove these facts: She was the owner of premises in New Haven, on the ground floor of which had been a liquor saloon for 13 years, with tenements on the floors above. For about four years prior to August, 1923, Michael Torello, uncle of defendant, rented through plaintiff's husband, he being her agent for this purpose, the premises in which he conducted a liquor saloon. He gave up the possession of the saloon prior to July 16 1923. On July 5, 1923, plaintiff's husband rented the premises which were then occupied as a liquor saloon by defendant's uncle to defendant from July 16, 1923, on a month to month oral lease at a rental of $40 a month. Plaintiff's husband and plaintiff knew at the time defendant rented the saloon that defendant purposed carrying on in such saloon the business of selling intoxicating liquors. Defendant went into possession of the saloon on July 16, 1923, and closed it up on August 6 or 7, 1923, upon order of the public authorities so to do. On August 11th defendant paid plaintiff's husband $40, being the month's rent from July 16th. He continued in the physical possession of the saloon premises until October 5, 1923, and kept the keys to the saloon until November 18, 1923.

Defendant offered evidence to prove these facts: He never rented the saloon from plaintiff's husband nor got the key to the saloon from him, but occupied it under his uncle Michael Torello, from whom he had received the key while working for him in the saloon, and that he closed up the saloon and so notified plaintiff's husband, because of an order so to do signed by the state's attorney, the prosecuting attorney of the court of common pleas and the city attorney of New Haven. The court directed a verdict upon the ground that " the use of the premises for those purposes was illegal and contrary to law, and that the plaintiff cannot recover rent for the premises so occupied."

Practically the only issue of fact between the parties was as to whether defendant was in fact a tenant of plaintiff under the agreement as claimed by her. The court in its direction of a verdict assumed this to be an undisputed fact instead of a controverted one. Since the direction of the verdict to find for the defendant reached the same conclusion as would have been reached had the jury found that the defendant never became a tenant of plaintiff, it furnished no ground of appeal by plaintiff. The only question on the appeal is that which arose upon the evidence and upon which the court directed the verdict in favor of the defendant, viz., assuming that plaintiff did rent the premises to the defendant, could plaintiff recover rent for these premises, since it was undisputed that defendant knew that the use of the premises for a liquor saloon was illegal when the lease was made, and made the lease for the purpose of having the premises conducted as a liquor saloon? Assuming that the lease was made to defendant by plaintiff with knowledge on the part of the plaintiff of the illegal purpose for which the saloon was to be used, it follows as matter of law that a landlord who leases his property in Connecticut, knowing that it is to be used for the purpose of carrying on the business of selling spirituous and intoxicating liquors, acts illegally and the contract so made is void. No action can be maintained upon the contract of lease, since the contract is against public policy. When the sale of intoxicating liquors is not prohibited by law, a lease of premises for the purposes of such sale is valid and will support a recovery for the rent unless it was made with the knowledge and purpose of the lessor that it was to be used for the illegal sale of liquors. Where the premises leased were rented with the knowledge and intention on the part of the lessor that they were to be used for a purpose prohibited by law, the courts have denied the lessor the right of recovery in an action for rent. This ruling has been applied in cases where the lease of premises has been for purposes of prostitution, or the illegal sale of liquor, or gambling or other unlawful uses.

In Mitchell v. Campbell, 111 Miss. 802, 808, 72 So. 231, in an action to recover rent of property used for the purpose of prostitution, the court said:

" The authorities are in accord that, if a landlord knowingly leases his property to be used for the purposes of prostitution, he cannot recover for rents which a tenant has agreed to pay. The whole contract is against public policy, an offense against morality, and absolutely void."

In Berni v. Boyer et al., 90 Minn. 469, 470, 97 N.W. 121, 122, the court held:

" The lease, because for an unlawful purpose, was undoubtedly wholly void, but we are aware of no rule or principle of law which would create a tenancy from month to month or at will under such circumstances. The occupancy of defendants was for an unlawful purpose, whether they held under the written lease, or were tenants from month to month. In either case they cannot found a right in law to continue in its violation. They could not be compelled to pay rent." Plath v. Kline, 18 A.D. 240, 45 N.Y.S. 951; Ralston v. Boady, 20 Ga. 449.

In Sherman v. Wilder, 106 Mass. 537, 539, in an action to recover rent under a lease, the court ruled:

" If the plaintiff gave the lease declared on, knowing that the defendant intended to use the premises described therein for the illegal sale of intoxicating liquor, and to enable the defendant to carry on the business there, and the premises were in fact so used, he cannot recover the rent due upon it, in this action. It was a contract void for illegality."

In Mound v. Barker, 71 Vt. 253, 254, 44 A. 346, 347, 76 Am.St.Rep. 767, in an action of debt on a bond given as surety for rent for premises used for the sale of liquor, the court held the action could not be maintained, saying:

" Thus, when property is leased with knowledge on the part of the lessor that the lessee intends to use it for an illegal or an immoral purpose and does so use it, the rent therefor cannot be recovered."

In Dunn et al. v. Stegemann et al., 10 Cal.App. 38, 101 P. 25, the court denied a recovery for rent of a liquor saloon, a business prohibited under the local law, upon this ground:

" The facts making such business unlawful were well known to the plaintiffs and defendants, and they are chargeable with knowledge of the law. It is well established that no recovery can be had by either party to a contract having for its object the violation of law. The courts refuse to aid either party, not out of regard for his adversary

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