Stewart v. Murphy

• Decision Date: 08 May 1915
• Docket Number: 19,453
• Citation: 148 P. 609,95 Kan. 421
• Parties: W. R. STEWART, Appellee, v. W. B. MURPHY, Appellant
• Court: Kansas Supreme Court

148 P. 609

95 Kan. 421

W. R. STEWART, Appellee, v. W. B. MURPHY, Appellant

No. 19,453

Supreme Court of Kansas

May 8, 1915

Decided. January, 1915.

Appeal from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Inconsistent Causes of Action--Raised for First Time on Appeal. An objection, that causes of action set out in a petition are inconsistent, not called to the attention of the trial court, will not be considered when presented for the first time in this court.

2. LEASE--Implied Covenant for Peaceable Possession. As against a lessor, or any one holding under him, a covenant of quiet enjoyment of the premises is implied in a lease silent on that subject.

3. SAME -- Breach -- No Possession Given -- Damages -- Loss of Profits. Loss of profits, when they can be ascertained, is a proper measure of damages where by the act of a lessor the tenant is deprived of the use and occupation of the premises covered by the lease.

4. SAME--Former Tenant--In Rightful Possession. A lessee working upon the leased premises on the first day of his term, does not thereby obtain possession thereof, where the premises are in the rightful possession of a prior tenant.

5. SAME--Verdict and Judgment Sustained. There is nothing in this case to indicate that the verdict was given under mistake, or the influence of passion or prejudice, nor that the verdict and judgment are contrary to the evidence.

P. L. Courtright, of Independence, for the appellant.

S. H. Piper, of Independence, for the appellee.

OPINION

MARSHALL, J.

This is an appeal from a judgment for damages for failure to deliver possession of leased premises.

The defendant leased to the plaintiff eighty acres of land in Montgomery county, but was unable to deliver possession of the premises because a former tenant held over under a lease not legally terminated. There are two causes of action set out in the petition. Under the first the plaintiff sought to recover the consideration paid for the lease. This was not contested by the defendant, was included in the verdict, and was remitted by the plaintiff before judgment. The second cause of action, as stated in the petition, is as follows:

"For a second and further cause of action the said plaintiff hereby refers to his first cause of action and makes all the allegations and averments thereof a part of this cause of action and further alleges that the said defendant has failed and neglected to place and put said plaintiff in the possession of said real estate as under his said contract of lease he was obligated and bound to do, and that by reason thereof said plaintiff has been deprived of the use of said real estate for the term for which it was leased to him, and that the fair and reasonable rental value of the use of said premises to said plaintiff during said term is the sum of $ 500.00, and that said plaintiff has been damaged by reason of said defendant's failure and neglect to comply with the terms, both express and implied, of said lease, and to place and put said plaintiff in the possession of said premises, in the aforesaid sum of $ 500.00, and which sum is now justly due and owing from the said defendant to said plaintiff."

(1) On the trial the defendant objected to the introduction of evidence on the second cause of action because it did not state facts sufficient to constitute a cause of action, and because the lease contained no warranty of possession. This objection was overruled. A demurrer to the plaintiff's evidence was also overruled. An objection urged against the second cause of action stated in the petition and against the evidence to sustain it, is that the plaintiff's two causes of action are inconsistent. This matter seems not to have been called to the attention of the trial court, and is now presented for the first time. It is now too late. ( Walker v. Armstrong, 2 Kan. 198, 222; Green v. Dunn, 5 Kan. 254; Moore v. Wade, 8 Kan. 380; Wilson v. Fuller, 9 Kan. 176; K. P. Rly. Co. v. Mihlman, 17 Kan. 224; Water Co. v. Hill, 46 Kan. 145, 26 P. 412; Rouse v. Bartholomew, 51 Kan. 425, 32 P. 1088; Board of Education v. Jacobus, 83 Kan. 778, 112 P. 612; Gorrell v. Battelle, 93 Kan. 370, 372, 144 P. 244; Insurance Co. v. Baer, 94 Kan. 777, 147 P. 840.)

(2) It is urged that there is no warranty in the lease of the quiet enjoyment of the premises. This is correct, unless one is implied. The lease recites that the party of the first part has this day leased and rented unto the party of the second part, for the term of one year, commencing on the first day of March, 1913, etc. To enjoy the benefits secured by this contract the lessee--the plaintiff in this action--must be in possession of the premises. If he can not have such possession, the provisions of the contract are defeated so far as he is concerned. In a sale of personal property there is an implied warranty or covenant on the part of the seller that he is the owner of the property and has the right to sell the same. Unless there is an implied covenant for quiet enjoyment of the premises a landowner may lease property to different persons for the same period, and not be liable because of failure to deliver possession under the leases. It is true that when parties enter into a written contract that contract is presumed to contain all the terms of their agreement, but many times conditions are implied by law on which the contract itself is silent. It would be a harsh rule that would permit a landowner to lease land to a person, and then, without fault on the part of the lessee, prevent him from going upon or possessing the premises. The authorities are not united in holding that a covenant of quiet enjoyment is implied in a lease. In a Note in 9 L.R.A. N.S. 1127, it is stated that the authorities upon this point are in direct conflict, and cases are there cited on both sides of the controversy. The weight of authority, however, is that in every lease of land a covenant of quiet enjoyment is implied when the lease is silent on that subject.

"The lessor impliedly covenants to put the lessee in possession at the beginning of the term as against a prior tenant wrongfully holding over." (Sloan v. Hart, 150 N.C. 269, 63 S.E. 1037, 21 L. R. A., n. s., 239, headnote, P 1.)

In Sloan v. Hart, supra, this language is found:

"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." (p. 271.)

"Ordinarily there is an implied covenant in a lease that the demised premises shall be open to entry by the lessee at the time fixed in the lease as the beginning of the term." (Herpolsheimer v. Christopher, 76 Neb. 352, 355, 107 N.W. 382, syl. P 1, 111 N.W. 359, 9 L.R.A. N.S. 1127.)

"Where the lease contains no stipulation to the contrary, there is an implied covenant on the part of the lessor that the premises shall be open to entry by the lessee at the time fixed by the lease for him to take possession." (24 Cyc. 1049.)

"A formal instrument of lease ordinarily contains an express covenant on the part of the lessor for quiet enjoyment by the lessee, but, according to the weight of authority, even though such a covenant is not expressed, it will be implied." (1 Tiffany, Landlord and Tenant, § 79, p. 517.)

"The making of a contract to let land, or the making of a lease for the land, from a certain date, binds the lessor to make the lease and deliver the possession." (Trickett, Landlord and Tenant, § 4, p. 3.)

"The law supposes that when a man makes a lease, he has a...