Schultz v. Lewis

• Citation: 90 P. 1030,40 Colo. 411
• Parties: SCHULTZ v. LEWIS.
• Decision Date: 01 July 1907
• Court: Supreme Court of Colorado

90 P. 1030

40 Colo. 411

SCHULTZ v. LEWIS.

Supreme Court of Colorado

July 1, 1907

Error to District Court, Teller County.

Action by Thomas Lewis against Mary Schultz. Defendant brings error from a judgment for plaintiff. Reversed.

Temple & Crump and E. C. Stimson, for plaintiff in error.

G. Q Richmond, for defendant in error.

MAXWELL J.

The defendant in error, claiming to be a tenant of plaintiff in error, sued to recover actual and exemplary damages, for an unlawful and malicious eviction from the rented premises during the term of the lease, and contrary to the covenants thereof. Conceding that defendant in error had a lease, which is strenuously controverted by plaintiff in error, one of the covenants of the lease was: 'That the lessee will not use or permit such premises to be used for any purpose prohibited by the laws of the United States or the state of Colorado or by the ordinances of the city of Cripple Creek.' The testimony of defendant in error proved that he was conducting a social club with a membership of over 100 colored men; that he held a license to sell liquor; that the club was frequented by members of the club and white women as their invited guests; that liquor was dispensed to all alike; that he was charged in police court with running a disorderly house, pleaded guilty, and paid his fine. The evidence shows that plaintiff in error served upon defendant in error a notice to vacate, and, after the expiration of the time fixed by the notice for the vacation of the premises, plaintiff in error commenced to demolish the building and compelled defendant in error to vacate. The court instructed the jury that, in the absence of proof of actual damages, 'the plaintiff could not in that event recover for more than a nominal sum as compensatory or actual damages, as, for instance, for $1.' 'And if you shall find that the defendant deliberately, and for the purpose of forcing plaintiff out of the possession of the premises, caused the building to be destroyed or rendered uninhabitable, they should find for the plaintiff in such sum as in your judgment would constitute reasonable exemplary damages.' These instructions were excepted to, and assignments of error are based thereon. The verdict of the jury was for $782, upon which judgment was rendered.

As above stated, the testimony of defendant in error conclusively shows that he was carrying on a business in the leased premises in violation of the criminal laws...