Ullman v. Herzberg

• Decision Date: 27 November 1890
• Citation: 91 Ala. 458,8 So. 408
• Parties: ULLMAN ET AL. v. HERZBERG.
• Court: Alabama Supreme Court

8 So. 408

91 Ala. 458

ULLMAN ET AL. v. HERZBERG.

Supreme Court of Alabama

November 27, 1890

Appeal from circuit court, Etowah county; JOHN B. TALLY, Judge.

The court, at the written request of the plaintiff, charged the jury as follows: "The court charges the jury that, if they believe from the evidence that Herzberg notified Ullman that he would demand damages unless the house was vacated by the 15th day of September, they may look to that fact to determine whether or not Herzberg waived the damages in this case; and if from that fact, with the other evidence in the case, the jury are reasonably satisfied that Herzberg did not waive his damages, their verdict will be for plaintiff, if the case in all its other facts is made out to the reasonable satisfaction of the jury," and refused the following charges requested by defendant: "(1) If the evidence fails to show that plaintiff gave defendant written notice that he would claim double rent after the expiration of the lease, the verdict of the jury must be for the defendants. (2) The plaintiff is only entitled to recover, if recover at all, double rent from the 15th day of September up to the time plaintiff obtained possession of his property at the rate of thirty-three 1/3 dollars per month, as shown by contract. (3) The court charges the jury that the notice introduced in evidence by plaintiff is not such notice as the law requires, and therefore plaintiff is not entitled to recover. (4) If the jury believe all the evidence, their verdict must be for the defendants. (5) If the jury believe from all the evidence that the lease of plaintiff expired on the 1st day of September, 1887, and that plaintiff consented that defendants might retain possession of the property after this time, to-wit, to the 15th day of September, then their verdict must be for defendants. (6) if the jury believe from all the evidence that the lease of plaintiff expired on the 1st day of September, 1887, and a different agreement was made between plaintiff and defendants, by which defendants were to have possession of the property up to the 15th day of September, then plaintiff would not be entitled to recover and their verdict must be for defendants."

John H. Disque, for appellants.

Aiken and Dortch & Martin, for appellee.

STONE C.J.

The main question in this cause arises under section 3391 of the Code of 1886. By that section it is enacted that "any person who, having entered into the possession of lands and tenements under a contract or lease, forcibly or unlawfully retains the possession thereof after the expiration of his term, or refuses to surrender the same on the written demand of the lessor, his agent or attorney or legal representative, is liable for double the amount of the annual rent agreed to be paid under such contract." The statute then declares that such tenant holding over is liable "for such other special damages as may be thereby sustained by the party thus unlawfully kept out of possession." The term of the lease of Ullman & Co. expired September 1, 1887, and the rental was $400 per year, payable monthly. They were erecting a store-house of their own, but it was not completed when their lease from Herzberg expired. Herzberg, who was preparing to go into business in the same house, informed Ullman & Co. that he would allow them two weeks within which to vacate the store, but that he must have it at the end of that time. It is shown that no compensation was agreed on, exacted, or paid for these extra two weeks. At the expiration of two weeks Ullman & Co. were still in possession, and on 15th of September Herzberg had written notice served on them that he demanded possession. Failing to obtain it, he instituted proceedings in unlawful detainer before a justice of the peace, and obtained a judgment evicting Ullman & Co. on September 23, 1887. He obtained the possession about 3d day of October, 1887. So that after demanding possession he was kept out about 17 days.

The premises alleged to have been detained or held over after the expiration of the lease are described in two of the counts of the complaint as "plaintiff's brick store-room which is built on west half of lot No. 180 in the town of Gadsden." The description in the other count is the same, with the exception that "brick store-house" is substituted for "brick store-room." It is specified as one ground of demurrer to the complaint that this description...