Smith v. Hunt

• Decision Date: 29 May 1911
• Citation: 79 A. 826,32 R.I. 326
• Parties: SMITH v. HUNT.
• Court: Rhode Island Supreme Court

79 A. 826

32 R.I. 326

SMITH

v. HUNT.

Supreme Court of Rhode Island.

May 29, 1911.

Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Action in the district court by Henry E. Smith against Edward B. Hunt. Cause removed to the superior court on demand for a jury trial. In the superior court, jury trial waived, and judgment for plaintiff, and defendant excepted thereto. Exception overruled, and case remitted, with directions.

C. M. Van Slyck and Frederick A. Jones, for plaintiff.

Edward M. Sullivan and Francis E. Sullivan, for defendant

PARKHURST This action was brought in the district court for the Sixth judicial district to recover rent and money expended to repair damages occasioned by the failure of the defendant to properly shut off water from a house. The cause was, after decision for defendant, removed to the superior court on plaintiff's demand for a jury trial. In the superior court, jury trial was waived, and the cause was tried before Mr. Presiding Justice Tanner.

At the trial it appeared that the defendant was occupying a house in Cranston as tenant from month to mouth under the plaintiff, that the monthly tenancy was from the 15th day of one month to the 15th day of the following month, and that the monthly rate was $30. January 10, 1909, the defendant's wife orally informed the plaintiff that her family intended moving during the week then next ensuing. The plaintiff informed her that the notice was insufficient, and that he would be entitled to the rent for the month ending February 15th. The next day the plaintiff wrote to the defendant to the same effect, and also made certain suggestions as to necessary precautions which should be taken to prevent damage to the plumbing in case the defendant moved out during the cold weather. This letter was followed by an interview at plaintiff's house, between the plaintiff and the defendant At this interview the plaintiff insisted that the defendant, for want of proper notice to terminate the tenancy, was liable for an additional month's rent, and, to assist the defendant, offered to accept payment in three equal installments, one in February, one in March, and one in April. The defendant said to the plaintiff that such an arrangement would help him, and, according to the plaintiff's testimony, promised to pay in accordance with plaintiff's offer. The defendant removed from the house January 12, 1909. January 17th the plaintiff, in examining the premises, found a window open. He entered through the window and ascertained that water had frozen in the closets, tanks, and traps. He then induced the defendant to visit the premises with him. The parties effected an entrance by means of the defendant's key to the back door. It was then agreed that the plaintiff should procure a plumber to do the work necessary to prevent damage, and the key to the back door was left with the plaintiff for that purpose. No other keys were ever delivered by the defendant to the plaintiff. The plaintiff had the plumbing put in order, and also had certain renovating work performed in the house, generally, to place the same in suitable condition for another tenant, a part before February 15th. The work was finished and the house relet in April, and the back door key was not returned to the defendant. The plaintiff paid for the plumbing $4.80 and sent the receipted bill to the defendant. While the renovation was in progress, the defendant was at the house and removed certain of his property, which he had left when he moved January 12th. The defendant raised no objection to the prosecution of the renovating work, nor did he at the trial claim to have been damaged thereby. At the conclusion of the testimony, the presiding justice rendered a decision that the plaintiff was entitled to recover the amount of the rent for the month in question, $30, and for plumbing work to the amount of $2, making a total amount of $32. To this decision the defendant has excepted.

The principal question involved is whether or not the delivery of the back door key to the plaintiff and his entry to make repairs to the plumbing, made necessary by the defendant's abandonment of the house in winter weather, and his subsequent general repair of the house to put the same in proper condition for rental to a new tenant, some of which repairs were made prior to February 15th, under the circumstances, was a surrender by the defendant of the premises let and an acceptance by the plaintiff. The secondary question suggested in his brief by the plaintiff as to the amount to which the plaintiff is entitled on account of his expenditures to prevent damage by reason of the ice in the plumbing fixtures is not open to us upon the record, because the plaintiff has taken no exception to the decision.

The defendant insists that his surrender of the back door key to the plaintiff, and plaintiff's entry on the premises for the purpose of repairing the plumbing, damaged and rendered unsafe by reason of the freezing due to the negligence of the defendant in abandoning the premises in winter, without proper precautions, and the subsequent general repair of the house by the plaintiff, who did some of the same during the month for which rent is claimed, constitute such a surrender on the part of the defendant, and acceptance on the part of the plaintiff, as to terminate the letting, and relieve the defendant of liability to pay any further rent. Defendant's counsel in his brief and argument quite ignores the fact that the plaintiff, upon being notified on January 10th by defendant's wife of their intention to leave during the next week, informed her that the notice was insufficient, and that he would be entitled to the rent for the month ending February 15th; that the next day plaintiff wrote to defendant to the same effect, and warned him as to precautions to be taken with regard to the plumbing in case he moved as intended; and further ignores the fact that the plaintiff again notified the defendant at a personal interview that he would hold him for a...