Realty v. Ei Al.

• Decision Date: 09 March 1920
• Court: West Virginia Supreme Court
• Parties: Mullens Realty & Insurance Co. v. D. M. Klein ei al.

85 W.Va. 712

Mullens Realty & Insurance Co.

v.D. M. Klein ei al.

Supreme Court of Appeals of West Virginia.

Submitted March 2, 1920.

Decided March 9, 1920.

1. Landlord and Tenant Abandonment of Lease by Operation

of Law Results from Acts Implying Mutual Consent to Termination.

A surrender or abandonment of a lease by operation of law results from acts of the parties which imply mutual consent to a termination of the tenancy. Whether such surrender has occurred is a question of intention. (p. 714).

2. Same Indefinite Tenancy of Building Terminated by Tenant's

Failure to Pay Rent and Lessor's Re-entry and Lease to Another.

A tenany of a building devoted to mercantile pursuits may, where no definite term is prescribed, be terminated by notice of the lessee's intention to abandon and his abandonment thereof manifested by the actual removal of his stock of goods therefrom, his failure thereafter to pay the rent as and when it became due, and the lessor's re-entry and lease of the same property to another for a like purpose, and the occupancy thereof by the latter pursuant to such contract, (p. 714).

3. Same Where Remedy at Law is Inadequate, Equity May En-

join Interference with Tenant's Possession.

Where the remedy at law is inadequate, equity has jurisdiction, at the suit of a lessor, to enjoin repeated and threatened-acts of interference with the possession of one tenant by another who asserts a prior pretentious right to the pos session of the same property, but which tenancy he voluntarily surrendered or abandoned, or which has terminated b> operation of law. (p. 717).

4. Injunction Circuit Judge on Notice to Party to be Affected

May Dissolve an Injunction in Vacation Without Costs.

Though a circuit judge lawfully may, upon notice duly served upon the party to be affected thereby, dissolve an injunction in vacation, he cannot in the order of dissolution so entered award costs for or against either party to the cause. (p. 718).

5. Same Judge of Circuit Court May Award an Injunction

Affecting Rights of Parties to Cause Pending in Court of Another Circuit.

A judge of one circuit in some circumstances lawfully may award an injunction affecting the rights of the parties to a cause pending in a court of another circuit, and when he does so, such order becomes the order of the court wherein the cause is pending. (p. 718).

6. Same Where Judge of One Circuit Awards Injunction Affect-

ing Rights of Parties to Cause Pending in Courts of Another Circuit, He Cannot Award a Rule Charging a Contempt of the Injunction Order.

In such a case the judge who awarded the injunction cannot lawfully award a rule charging a contemptuous disregard of the injunction order, and if he does so, the pendency of the rule, though served upon the accused, does not prevent him from moving the court to dissolve the injunction so awarded, (p. 719).

Appeal from Circuit Court, Wyoming County.

Suit for injunction by the Mullens Realty & Insurance Company against D. M. Klein and others. From a vacation decree dissolving an injunction theretofore awarded, pursuant to the prayer of the bill, plaintiff appeals.

Reversed, injunction reinstated, cause remanded.

Grover C. Worrell, for appellant.

Toler & Moran, for appellees.

Lynch, Judge:

The right to have the protection afforded by an injunction against the defendant Klein's unlawful interference with the quiet enjoyment by plaintiff, a corporation, of a lot and building in the Town of Mullens, the title to which is undisputed, is presented for determination upon this appeal from a vacation decree dissolving an injunction theretofore awarded pursuant to the prayer of the bill filed in the cause. According to the allegations of the bill, plaintiff leased the property to defendant D. M. Klein for mercantile purposes sometime prior to January 1, 1918, from month to month, upon a $30 monthly rental payable in advance on the first day of each succeeding month. This rental defendant paid as agreed until December 1, 1918, and entered into the possession of the property and continued to occupy it until about that date, when he ceased and has not since resumed payment of the rental, and abandoned the leased premises and therefrom removed his stock of goods to another building in Mullens where he since has carried on the same business. Thereupon plaintiff entered into a new lease with E. H. Lopinsky for the building thus vacated, and it is for the purpose of restraining defendant from interfering with the new tenant that this suit was instituted.

The chief disagreement between the allegations of plaintiff's bill and defendant's answer is as to the duration of the lease term, the abandonment of the premises and the removal of the stock of merchandise. According to the latter, the lease was to continue indefinitely from month to month, and defendant insists that he did not surrender or abandon it on December 1, 1918, but left remaining in the building a material part of his stock of goods. The answer is silent as to the payment or tender of the rental due and payable on and subsequent to December 1st until after defendant knew plaintiff had leased the property to defendant's competitor in the same line of business, when defendant offered to increase the amount of the rental from $30 to $65 per month. But as neither contract was in writing, the duration of neither term could extend beyond the period of one year from the date it was entered into except by the mutual acquiescence of the parties. Clause 6, section 1, ch. 98, Code 1918.

Though it is true abandonment of rights under a lease depends to some extent upon the intention of the party against whom it is to be applied, yet where every act of his and his conduct respecting the premises leave no doubt as to the existence of a design and purpose to abandon the leased building, and the landlord with knowledge of such intention releases to another, thereby accepting or acquiescing in the abandonment, the intention of both parties to terminate the former tenancy clearly discloses itself. Sult v. Hochstetter Oil Co., 63 W. Va 317, 329 et seq. In view of these facts it is not material whether the lease under which defendant claims was one for a definite term ending on December 1, 1918, or one continuing from month to month, for in either event the parties have shown by their actions that their mutual rights thereunder were surrendered and terminated on the date above mentioned. Klein left the property, moved his goods out of it with the possible exception of a few boxes and tables, took them to another building and there offered and exposed them for sale, ceased to pay rent for the premises vacated and did not thereafter pretend to exercise the right to control the latter until he ascertained that a business rival had leased the building, purchased and caused to be shipped to Mullens a stock of merchandise similar to his and was about to display them therein to the public for sale in competition with him. Then it was that he for the first time asserted a claim of right to the leased premises, contending that at no time had he abandoned his rights under the tenancy from month to month.

Acting upon the assumption of a terminated right and abandonment of the premises by defendant, plaintiff first granted to a contractor the privilege of storing therein temporarily lumber purchased for use in the erection of a nearby structure. This privilege the contractor availed himself of until plaintiff contracted to lease the premises to E. II. Lopinsky, to whose occupancy and enjoyment thereof defendant seriously objected and undertook to hinder and prevent until restrained by the inhibitive process later dissolved and subsequently restored by the award of this appeal.

There is, it seems to us, no merit in the asseveration of defendant that he had not removed all of his stock of merchandise from the premises prior to December 1st, but had left therein a substantial part of the stock for sale by his employees, who were selling the same when plaintiff entered into the contract

with Lopinsky. Such claim is merely pretentious. It has...