Shapiro v. Christopher

• Decision Date: 10 January 1952
• Docket Number: No. 10858.,10858.
• Citation: 90 US App. DC 114,195 F.2d 785
• Parties: SHAPIRO v. CHRISTOPHER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

90 US App. DC 114, 195 F.2d 785 (1952)

SHAPIRO v. CHRISTOPHER.

No. 10858.

United States Court of Appeals District of Columbia Circuit.

Argued October 8, 1951.

Decided January 10, 1952.

As Amended March 28, 1952.

COPYRIGHT MATERIAL OMITTED

Mark P. Friedlander, Washington, D. C., for appellant.

Robert T. Smith, Washington, D. C., for appellee. Charles L. Norris, Washington, D. C., also entered an appearance for appellee.

Before WILBUR K. MILLER, BAZELON, and FAHY, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

The plaintiff-appellee, Cost Christopher, was the owner of a parcel of ground divided into three lots, designated by the street numbers XXXX-XX-XX Georgia Avenue, N. W. There was a business house on the lot numbered 3118. The other two lots were unimproved and vacant. By a lease dated June 3, 1949, Christopher leased to the defendant-appellant, Jacob Shapiro, "Building located at 3118 Georgia Ave. N.W. Washington, District of Columbia with space in rear of same to park Six (6) trucks." The term was fixed at five years from July 1, 1949.

Beginning on August 1, 1949, Shapiro stored merchandise on the two vacant lots, Nos. 3120-22, although he had no lease therefor and paid nothing for the privilege. On April 20, 1950, Christopher sued Shapiro in the Municipal Court for the District of Columbia for possession of the two vacant lots and for the sum of $1,125 as rent therefor from August 1, 1949, to May 1, 1950, notice to quit on May 1 having been previously given. The complaint described Shapiro as a tenant by sufferance, but also alleged that he held the premises "without right."

Shapiro answered, saying Christopher had given him permission to store merchandise on the two vacant lots with the understanding that a lease would be agreed upon, but that later Christopher had refused to execute a lease or create any sort of tenancy. He alleged Christopher had told him he must remove his merchandise when he, Christopher, was ready to build, but in the meantime "there would be no charge for merely leaving the merchandise in the fenced area." Shapiro's answer also stated he did not claim the right to possession of the two lots "except for the rear portion thereof consisting of 1200 square feet or sufficient space to park six trucks, as granted in the lease for 3118 Georgia Avenue, N. W., made on the 3rd day of June, 1949."

Thus the issues were these: (a) did the lease of June 3, 1949, which described the demised premises as "Building located at 3118 Georgia Ave. N.W. Washington, District of Columbia, with space in rear of same to park Six (6) trucks" give to Shapiro the right to occupy and use the rear portion of the two adjoining vacant lots consisting, as he said in his answer, "of 1200 square feet or sufficient space to park six trucks, as granted in the lease for 3118 Georgia Avenue, N.W."; (b) had Christopher given Shapiro the right to store merchandise in the fenced area of the vacant lots (presumably that portion in front of the part claimed for truck parking) without charge, or was Christopher entitled to compensation for that use and for the use of the rear portion of the vacant lots on which Shapiro had parked his trucks; and (c) if the latter, what sum was Christopher entitled to recover as compensation for Shapiro's use of the vacant lots?

The trial began on May 26, 1950, and was completed on May 29. Shapiro stated he would make no point of the fact that the suit was filed prior to the expiration of the thirty-day period fixed in the notice to quit. During the trial Christopher was permitted, without objection, to amend his complaint so as to claim the additional sum of $125 as rent for the month of May, 1950. The jury found Christopher entitled to possession of the two vacant lots, and assessed the rent due for the period from August 1, 1949, to May 31, 1950, at $437.50.

On June 1, 1950, Christopher accepted Shapiro's certified check for $438.50, being the amount fixed in the verdict plus $1 as costs. Having made this payment, Shapiro moved for judgment on the issue of possession, notwithstanding the verdict, and further moved that the claim for rent be dismissed because the amount fixed by the jury had been paid, with costs. Pursuant to this motion, the Municipal Court made the following entry on June 9, 1950: "The sum of $438.50 tendered by the defendant to the plaintiff on June 1, 1950, this cause dismissed without prejudice. Defendant's motion for judgment notwithstanding the verdict held moot."

Christopher appealed to the Municipal Court of Appeals, which reversed the order appealed from and instructed the Municipal Court to enter judgment in accordance with the verdict but also to enter a final stay of execution thereunder.¹ We granted Shapiro's petition for an appeal from the judgment of the Municipal Court of Appeals.

The appellant says the Municipal Court of Appeals erred in directing the entry of a judgment for possession even though it ordered a permanent stay thereof; that it should have affirmed the Municipal Court's order of dismissal. He bases that contention on the rule that, when a landlord gives notice to quit and later accepts rent for a new term or part thereof, he waives his right to demand possession under the notice.² Doubtless the Municipal Court was following that rule in dismissing without prejudice Christopher's claim for possession.

The rule applies only in cases where a notice to quit is a statutory prerequisite to the landlord's right to recover possession from his tenant, i. e., in cases involving tenancies from month to month, at will or by sufferance. 45 D.C.Code §§ 902, 903 and 904 (1940). Shapiro was none of these. With respect to the front portion of the vacant lots, he expressly disclaimed any sort of tenancy, saying he had stored merchandise there by permission but without any lease or agreement as to the payment of rent. As to the front portion of the lots he was, therefore, only a permissive occupant and a mere licensee. City of Owensboro v. Cumberland Telephone Co., 1913, 230 U.S. 58, 33 S.Ct. 988, 57 L.Ed. 1389; Hicks Brothers v. Swift Creek Mill Co., 1902, 133 Ala. 411, 31 So. 947, 57 L.R.A. 720; Eastman v. Piper, 1924, 68 Cal.App. 554, 229 P. 1002; Howes v. Barmon, 1905, 11 Idaho 64, 81 P. 48, 69 L.R.A. 568.

His only claim to possession of the rear portion of the vacant lots, where he parked his trucks, was his theory that the lease of the building on lot No. 3118 with space in the rear for parking trucks gave him the right to use similar space on the rear part of the two adjoining lots. The lease for No. 3118 did not in terms give him the right to park on Nos. 3120-22 and the jury decided it was not so intended by the parties. It follows that, as to the parking area at the rear of the vacant lots, Shapiro was a trespasser.

Moreover, had Shapiro been a tenant at will, by sufferance, or from month to month, and so entitled to receive a notice to quit, the rule of the Edwards and Byrne cases which he invokes would still have been inapplicable, because the sum of $437.50 fixed by the jury as the amount owing for the use and occupancy of the two lots for the period from August 1, 1949, through May 31, 1950, was past due when he paid it on June 1, 1950. This court pointed out in the Edwards and Byrne cases that a landlord's receipt of rent already in arrears merely obviates the necessity of entering judgment for that amount and in no way affects his right to judgment for possession. This was recognized by the Municipal Court of Appeals in the present case when it said in its opinion, 76 A.2d at page 782: "* * * The trial of the case commenced May 26, 1950, and the verdict was rendered May 29. At the time of the commencement of the action and rendition of verdict plaintiff had not been offered and had not accepted any rent running beyond the date of the expiration of the thirty days' notice to quit. It was only after verdict and on June 1, 1950, when rent (or a charge for use and occupancy for the month of May) was due, that the payment was offered and accepted."

So the Municipal Court of Appeals concluded that the Municipal Court erred in dismissing after verdict and prior to judgment. It held that the plaintiff was entitled to entry of judgment for possession in accordance with the verdict but that, since the amount found by the jury to be owing had been paid and accepted, the plaintiff was not entitled to execution. Accordingly the appellate court reversed and directed the Municipal Court to enter judgment for possession in favor of the plaintiff pursuant to the verdict, and then to enter a final stay of execution under the judgment so entered.

This action of the Municipal Court of Appeals was based, as its opinion shows, upon Sheets v. Selden, 1868, 7 Wall. 416, 74 U.S. 416, 19 L.Ed. 166, and Trans-Lux Radio City Corp. v. Service Parking Corp., D.C.Mun.App.1947, 54 A.2d 144. In the cited Trans-Lux case the Municipal Court of Appeals said, 54 A.2d at page 146: "At least since Sheets v. Selden, 7 Wall. 416, 74, U.S. 416, 19 L.Ed. 166 1868, it has been the rule in this jurisdiction that a court of law or equity may relieve a tenant from forfeiture of his lease for nonpayment of rent by permitting him before or after judgment, so long as he is in possession, i. e., before `execution is executed,' to pay the rent due, with interest and costs. Upon this being done, a final stay of proceedings is ordered."

Later in the same opinion the court said, 54 A.2d at page 147: "* * * The ground for granting relief to the tenant is that the provision of the lease giving the landlord the right to repossess for nonpayment of rent is in substance merely security for payment of rent, and that upon payment of the arrears, interest and costs, the landlord has complete compensation and has no need to resort to his security."

This principle, aptly stated in the Trans-Lux case, applies only in a situation where a tenant under an unexpired lease fails to pay...