Reichman v. Drake

• Decision Date: 07 May 1951
• Citation: 100 N.E.2d 533,89 Ohio App. 222
• Parties: , 59 Ohio Law Abs. 593, 45 O.O. 444 REICHMAN v. DRAKE.
• Court: Ohio Court of Appeals

Page 222

89 Ohio App. 222

100 N.E.2d 533, 59 Ohio Law Abs. 593, 45 O.O. 444

REICHMAN v. DRAKE.

Court of Appeals of Ohio, Hamilton County.

May 7, 1951.

[100

N.E.2d 534] Syllabus by the Court.

(1) The fact that the term of a lease is to commence in futuro does not prevent the agreement from being a present demise.

(2) A lease or agreement, entered into in February, 1949, provided for the leasing of premises for a term of five years, commencing on July 1st, 1949, and contained a provision that possession was to be delivered when incumbent tenant, whose term would expire on June 9th, 1949, vacated the premises. It was held that the provision relating to the delivery of possession did not prevent the leasehold from taking effect as a conveyance, and that the lessee on July 1st, 1949, had a right of entry as against the incumbent lessee who had held over wrongfully.

(3) One who, without privilege to do so, induces or otherwise purposely causes a third person not to perform a contract with another or enter into or continue a business relation with another is liable to the other for the harm caused thereby.

(4) The malice that forms an element in an action for causing a breach of contract by, or inducing a refusal to enter into a contract by a third person, is legal malice, that is, the intentional doing of a harmful act without legal justification or excuse, or, in other words, the wilful violation of a known right.

(5) In an action for maliciously inducing a third person not to perform a contract or to enter into a contract, personal ill will, spite or hatred, is not an element of the cause of action, and is material only on the issue of whether punitive damages should be awarded.

Cors, Scherer, Hair & Hartsock, Cincinnati, for plaintiff-appellant.

Milton D. Tobin, Cincinnati, for defendant-appellee.

MATTHEWS, Judge.

On September 10th, 1935, the defendant's husband took possession of premises known as 410 Walnut Street in the City of Cincinnati as a lessee of The Thomas J. Emery Memorial Estate. He continued as such lessee until his death in 1938. Thereupon, the defendant became lessee of the premises. In 1944, the parties entered into a new lease for a term of five years commencing on June 10th, 1944, and expiring on June 9th, 1949. On June 11th, 1948, The Thomas J. Emery Memorial Estate, the lessor, notified the defendant, the lessee, in writing, that the lease would not be renewed at its expiration. The lessee requested the lessor to renew the lease, and, as a result of such request, the lessor, on September 14th, 1948, again notified her that the lease 'would not be renewed at its expiration date, viz., June 9th, 1949.' Although defendant during the time from September 14th, 1948 to June 9th, 1949 tried to get the lessor to recede from its position not to renew the lease, there is no claim or evidence that the lessor did so or gave the defendant any basis for thinking that it would or might do so. Nor did the plaintiff give defendant any right to expect that she would be permitted to hold over.

In the meantime, The Thomas J. Emery Memorial Estate, the lessor, on February 4th, 1949, leased or contracted to lease these premises to the plaintiff for a term of five years, commencing on the 1st day of July, 1949, and expiring on June 30th, 1954. This lease or agreement contained a provision that possession would be given when the defendant vacated the premises. The defendant was informed of this lease or agreement to lease within a day or so of its execution.

The defendant did not vacate the premises on June 9th, 1949, and The Thomas J. Emery Memorial Estate instituted proceedings in forcible entry and detainer against her. The defendant did not vacate the premises until on or about November 1st, 1949.

This action was filed on July 14th, 1949, while defendant was still in possession of the premises, to recover the damages sustained by reason of the defendant's refusal to vacate the premises and permit him to take possession on July 1st, 1949.

At the trial, on the conclusion of the plaintiff's evidence, the defendant moved for an instructed verdict. This motion was granted. On the verdict thus returned, judgment was entered. It is from that judgment that this appeal was taken.

The first question presented is whether the facts set forth present a case for submission to the jury to assess such damages as the law permits for the failure and refusal of the defendant to vacate the premises on the expiration of her lease. In other words, did her failure to vacate violate any right of the plaintiff?

Now what right had the plaintiff? It is undisputed that he and The Thomas J. Emery Memorial Estate had executed a written document in the form of a lease giving to the plaintiff a leasehold for five years from July 1st, 1949, containing a provision that possession was to be given when the premises were vacated by the existing tenant. In 32 Am.Jur., 51, it is stated that: 'The fact that the term of the lease is to commence in futuro does not prevent the agreement from being a present demise.'

And at page 78 of 32 Am.Jur., the universally recognized rule is stated that: 'A leasehold estate, however, such as a term for years may be created at common law to commence in futuro, for in such a case a present interest vests, called an 'interesse termini,' although not an interest in possession until the lessee enters into possession.'

Johnston v. Corson Gold Mining Co., 9 Cir., 157 F. 145, 15

L.R.A., N.S., 1079, involved a lease similar in many respects to the terms of the lease in the case at bar. It was held as stated in the first paragraph of the syllabus that: 'A provision in a lease that, if the lessor cannot deliver possession as contemplated, delay in delivery of possession will not work an abridgement of the term, but shall operate to defer the date of its commencement, does not change the character of the conveyance from an executed to an executory contract.' And 157 F. at page 148, 15 L.R.A.,N.S., at page 1083, the Court said: 'A lease to commence in futuro is grantable. Whitney v. Allaire, 1 N.Y. 305; Becar v. Flues, 64 N.Y. 518. The lessee acquired an interest in the term, which he could assign, and for which he could maintain ejectment without any further act upon his part, if possession was withheld after his right of entry became complete.' See, also, 32 Am.Jur., 50, et seq.

The court held that as the plaintiff had an adequate remedy at law by ejectment, an action in equity to remove cloud, etc., could not be maintained against one in possession of the leasehold.

In November or December, 1949, a new lease was entered into between the plaintiff and The Thomas J. Emery Memorial Estate, providing for the commencement of the term at the time when the plaintiff obtained possession of the premises. Both copies of the lease or agreement of February 4th, 1949, were destroyed, and, for that reason, the parties to this action were forced to rely on oral testimony as to its terms. However, the parties were in agreement as to its essential terms, and we conclude that it was a lease transferring to the plaintiff a leasehold estate in the premises as distinguished from a contract for a lease, creating contractual rights, but conveying no estate in the land.

As will appear later, we do not consider the distinction between a lease and an agreement for a lease as material in this case. In either event, the plaintiff would have rights created thereby, which could not be violated with impunity. We think the authorities warrant the statement that even assuming that no lease or agreement for a lease had been consummated, and that the parties had not concluded their negotiations, a third person could not maliciously interfere and prevent the negotiations resulting in a contract without incurring liability. And the fact that the parties substituted a new lease for the old one would have no effect upon a cause of action already accrued.

We next inquire whether the action of the defendant constituted an infringement of the plaintiff's...