Peters v. Fisher

• Decision Date: 18 April 1883
• Court: Michigan Supreme Court
• Parties: PETERS v. FISHER.

15 N.W. 496

50 Mich. 331

PETERS v. FISHER.

Supreme Court of Michigan

April 18, 1883

Where a landlord recovers possession from his tenant in summary proceedings, and pending appeal by the tenant the term claimed by him expires, and the landlord immediately lets the premises to the tenant's wife, the appellant cannot plead this as a fact puis darrein, amounting to surrender by himself and acceptance by the landlord, and precluding judgment for the landlord on the appeal.

Complainant in summary proceedings to recover possession of land from a tenant who is found to have been wrongfully holding over when the proceeding was begun, is entitled to judgment for restitution, and to damages and costs; and if, pending appeal by the tenants, the term claimed by him expires and the landlord regains possession, the landlord's right to recover damages and costs upon affirmance of the judgment in his favor is not thereby lost, even though he no longer requires process to restore him to possession.

Error to Wayne.

Edward S. Grece, for plaintiff and appellant.

Sylvester Larned, for defendant.

COOLEY J.

Complainant took proceedings before a circuit court commissioner to recover possession of premises which he had leased to respondent, and which he claimed respondent was holding unlawfully after the term had expired. The controversy in the case had regard to the length of the term; complainant testifying that the leasing was from month to month only, and had been terminated by notice; while respondent claimed it was for a full year, which had not expired when the case was tried by the commissioner. The trial of the commissioner resulted in a verdict for the complainant, and respondent appealed to the circuit court, giving for that purpose the statutory bond for the payment of such judgment as might be rendered on the appeal.

Before the case was brought to trial in the circuit court, the year for which respondent claimed to have leased the premises expired, and his wife thereupon applied for and received a lease of the same premises from the complainant. The respondent then pleaded this fact puis darein, claiming it constituted a surrender of the premises by himself and an acceptance by the complainant, the effect of which was to preclude any judgments in favor of complainant in this proceeding. The circuit judge took this view and directed a verdict for respondent, upon which judgment was entered in his favor...