Sloan v. Hart

• Decision Date: 17 March 1909
• Citation: 63 S.E. 1037,150 N.C. 269
• Parties: SLOAN et al. v. HART et al.
• Court: North Carolina Supreme Court

63 S.E. 1037

150 N.C. 269

SLOAN et al. v. HART et al.

Supreme Court of North Carolina

March 17, 1909

Appeal from Superior Court, New Hanover County; Lyon, Judge.

Action by R. C. Sloan and others against Etta Hart and others. Judgment for plaintiffs, and defendants appeal. Reversed in part.

An action for tort accrues immediately on the commission of the tort.

The court submitted these issues: "(1) Were the plaintiffs injured by the breach by defendants of their contract, as alleged in the complaint? (2) What damages, if any, are plaintiffs entitled to recover? (3) Did the defendants have the right to rent the stores to the plaintiffs according to the lease offered in evidence?" The jury answered the first issue "Yes," the second issue "373.31," and the third issue, "No."

Robert Ruark, for appellants.

E. K Bryan, for appellees.

BROWN J.

The admitted facts are that on May 18, 1906, the defendants through their agent, leased in writing to plaintiffs two stores, 19 and 21 S. Front street, in the city of Wilmington, the term to begin October 1, 1906, and expire September 30, 1909, at a rental of $66.66 2/3 per month, payable in advance. The premises had been theretofore leased to Josh Simon, whose term expired September 30, 1906, but in his lease are these words: "It is further agreed, that the owner or agents will have the right to place rent cards, 'For Rent,' on front of the house thirty days before the expiration of this lease, provided, I do not agree to hold this property for another year." Simon refused to vacate on October 1st, and defendants endeavored to eject him by proceedings before a justice of the peace. Being unsuccessful, they appealed to the superior court, where the cause is now pending. The plaintiffs rented other stores, and bring this action to recover damages. The court charged the jury that it was the duty of the defendants to put the plaintiffs in possession on the date fixed for the beginning of the term, to which defendants excepted.

1. It is unnecessary to consider seriatim the many assignments of error, as we are of opinion that upon the admitted facts the plaintiffs are entitled to recover actual damages, and that a new trial is necessary upon that issue for error in the charge. The appeal presents a question which has never been decided before in this state, and upon which the courts of other states have differed materially in their judgments, and which is tersely expressed, in the very able brief of the learned counsel for plaintiffs, as follows: "Did the lessors impliedly covenant with the lessees that the leased premises would be open to entry by the lessees at the date fixed for the beginning of the term?" All authorities are agreed that if Josh Simon, the prior tenant, held over rightfully under the terms of his lease, the defendants would be liable, for to hold otherwise would be giving to the defendants the benefits of their own wrong. If defendants' failure to put plaintiffs in possession was caused by a wrongful holding over of the former tenant, then the authorities are in direct conflict. If there was a finding that the plaintiffs had notice, at the date of their lease, of the terms of Simon's lease, we might be inclined to the opinion that nothing short of an express covenant to put the plaintiffs in possession at the date agreed would render defendants liable for damages for Simon's failure to vacate. In the absence of evidence of such notice, and assuming, for the purposes of this case only, that the holding over of the former tenant is wrongful, we are persuaded by reason and authority to hold that when plaintiffs' lease was executed on May 18th, the lessors impliedly covenanted to put the plaintiffs in possession on October 1st, and that there has been an admitted breach of that covenant, for which the lessors are liable in actual damages, notwithstanding that they acted in good faith. The leading case, which holds that there is no implied covenant on the part of the lessor, is the New York case of Gardner v. Keteltas, 3 Hill (N. Y.) 330, 38 Am. Dec. 637. This case, which by some text-writers is stated to have declared the "American rule," has been followed by later decisions of the New York courts. An examination of the case, however, shows that there existed in New York at the time a statute such as does not exist in North Carolina, and the conclusion of the court appears to have been, to some extent, based upon that statute. However that may be, the New York case has been followed by respectable courts, without adverting to any peculiar statutory enactments in their respective states.

Investigation and reflection lead us to the conclusion that the decisions by the courts of Great Britain, made as early as 1829, are as well supported by authority, and more strongly sustained by reason and abstract justice, than is the judgment of the New York court. The first of these decisions is summed up with quaint terseness by Baron Vaughan: "The courts were all clearly of opinion that he who lets agrees to give possession, and not merely to give a chance of a lawsuit." Beginning with the case of Coe v Clay, 15 Eng. Com. Law Reports, 492, what is known as the "English rule" was announced; that is, that in the absence of express provision in the lease, the lessor impliedly covenants with the lessee that the premises shall be open to entry by the lessee at the time fixed for the beginning of the term. This case has been followed by cases of Jenks v. Edwards, 11 Exch. 775; Hertzberg v. Beisenbach, 64 Tex. 262; L'Hussier v. Zallee, 24 Mo. 13; Rieger v. Welles, 110 Mo.App. 173, 84 S.W. 1136; Hughes v. Hood, 50 Mo. 350; King v. Reynolds, 67 Ala. 229, 42 Am. Rep. 107; Vincent v. Defield, 98 Mich. 84, 56 N.W. 1104; Cohn v. Norton, 57 Conn. 480, 18 A. 595, 5 L. R. A. 572; Herpolsheimer v. Christopher, 76 Neb. 352, 107 N.W. 382, 111 N.W. 1019, 9 L. R. A. (N. S.), 1127; and Huntington E. P. Co. v. Parsons, 62 W.Va. 26, 57 S.E. 253, 9 L. R. A. (N. S.) 1130. The theory of the New York court is that if the lessee is prevented from taking possession by a tenant wrongfully holding over, it is not the duty of the landlord to oust the...