Utah Optical Co. v. Keith

• Decision Date: 23 February 1899
• Citation: 18 Utah 464,56 P. 155
• Court: Utah Supreme Court
• Parties: UTAH OPTICAL COMPANY, PLAINTIFF and RESPONDENT v. DAVID KEITH AND JAMES IVERS, DEFENDANTS AND APPELLANTS

56 P. 155

18 Utah 464

UTAH OPTICAL COMPANY, PLAINTIFF and RESPONDENT v. DAVID KEITH AND JAMES IVERS, DEFENDANTS AND APPELLANTS

Supreme Court of Utah

February 23, 1899

Appeal from the 3rd District Court Salt Lake County, Hon. A. N Cherry, Judge.

Action by plaintiff for damages on account of having been unlawfully evicted by defendants from a certain store building in Salt Lake City. From a verdict and judgment for plaintiff defendants appeal.

Reversed and Remanded.

Messrs Dickson, Ellis & Ellis, for appellants.

The alleged parol lease of plaintiff being for more than one year is void under the statute of Utah and no suit founded upon such a lease, or estate for two years, or any particular time exceeding one month, can be maintained. It was a mere tenancy at the will of Houston, or from month to month, even though one-half was turned over to the plaintiff by parol agreement that plaintiff should pay one-half of the improvements and pay half the rent. Talamo v. Spitz Miller, 120 N.Y 37; 17 Am. St. R. 607; Thomas v. Nelson, 69 N.Y. 119; Trust Co. v. Garbutt, 6 Utah, 342; Mahon v. United States, 16 Wall, 143; 6th M. & W., 224; Dung v. Parker, 52 N.Y. 496; O'Neill v. New York Cen. & H. Ry., 60 N.Y. 138.

Messrs. Krebs & Hoppaugh, and Messrs. Moyle, Zane & Costigan, for respondent.

The point is made on p. 19 of appellant's brief that the parol lease was a tenancy at will or from month to month, and cases are cited that a recovery can only be had for a month's term. But those cases will be found to be cases where the tenant at will or from month to month, sues his landlord, where notice to quit was either given or not required. But in this state the statute prescribes that to terminate a tenancy at will, a notice to quit is required. 2 Compiled Laws, Sec. 3788, p. 400. R. S. Sec. 3575, Subd. 2, p. 791.

And it is the admitted fact that this tenancy at will continued to exist during the whole of Houston's term, and the record so states. To say that a stranger could shorten that term by an eviction is simply to say that a man can benefit by his own wrong.

BASKIN, J. BARTCH, C. J. and McCARTY, Dist. Judge, concur.

OPINION

BASKIN, J.

This is an action for the recovery of damages alleged to have been received by the plaintiff on account of having been unlawfully evicted by the defendants from a certain store building, situated on Main street, Salt Lake City, and designated as No. 230. On the trial the jury found for the plaintiff; judgment thereon was entered, and from this judgment defendants appeal. Among other things the complaint alleges that the plaintiff, at the time mentioned in said complaint, was and still is a corporation; that for the period of two years, commencing on the first day of March, 1895, and continuously up to, and including the first day of March, 1897, plaintiff was lawfully entitled to the possession of the following described real estate, situated in the city and county of Salt Lake, State of Utah, to wit: The south half of the store building known and designated as No. 230 Main street, in said city; and that during all of said period plaintiff had a leasehold estate in and to all of said premises as tenant at will in possession, and entitled to the possession under and by virtue of a parole lease thereof for the term of two years from and after the 1st day of March, 1895, and as lessee therein, was entitled to the possession of the whole of said premises during all of said period; that on the 18th day of November, 1895, the plaintiff being then in possession, the said defendants, with a force of men, willfully, wantonly, and oppressively tore down and utterly demolished said store building, threw into the street, broke and destroyed plaintiff's stock, tore down and injured plaintiff's signs, and destroyed, carried away and lost plaintiff's records, and prevented plaintiff, by force, from carrying on its said business, and ever since have prevented plaintiff from taking possession of said premises, and deprived plaintiff of all benefits of its leasehold interest in said property; that since the 1st day of November, 1895, and during the whole of said term, to wit: Since the 1st day of November, 1895, and up to and including the 1st day of March, 1897, it has been, by the several acts of trespass of said defendants so continuing as aforesaid, utterly deprived of the possession of said premises, and of the benefit of its said leasehold estate.

In the prayer of the complaint damage is claimed: First. For the value of plaintiff's leasehold estate. Second. For the destruction of certain personal property. Third. For injury to plaintiff's special business. Fourth. For loss of plaintiff's income. Fifth. For exemplary damages. The whole amount of the damages claimed was $ 16,400.00.

The answer denied that the plaintiff was a corporation, or ever was lawfully in possession or lawfully entitled to the possession of the premises described in the complaint, and after many other specific denials, in justification of the acts charged, alleged, in substance, that on and ever since the 28th day of February, 1895, the defendants have been, and still are the owners of, and in possession of lot 8, block 58, plat "A", Salt Lake City Survey; that on the date aforesaid, there was on said lot an old dilapidated building; that No. 230 mentioned in the complaint, was the entrance to a room in said dilapidated building, and that on said last mentioned date the defendant leased said room in said building to J. W. Houston, for a term of two years from the 1st day of March, 1895; that on the 19th day of October, 1895, the inspector of buildings, and the chief of the fire department, and the committee on fire department of said Salt Lake City, in pursuance of the provisions of said ordinance, made an examination of said building and found the same to be dangerous and unsafe to property in the vicinity of said building, and on the date last aforesaid, and after said examination, the said inspector of buildings notified these defendants to make, and required them to make, extensive and expensive repairs in and upon said said building in order to render the same safe to other property in the vicinity thereof, and further notified these defendants that if they failed to make such repairs immediately, he, said Inspector of Buildings, would condemn the whole of said building, and in pursuance of the provisions of said ordinance, would cause the whole of said building to be demolished; that the necessary cost and expense of making the repairs to said building so required by the said Inspector of Buildings, would have amounted to a large sum of money, to wit, to a sum not less than $ 4,000.00; that the estimated cost of said repairs as made by said Inspector of Buildings was $ 3,897.00; that with such repairs made said building would have been worth much less than the cost of said repairs; that on, to wit, the 22d day of October, 1895, these defendants, in obedience to the provisions of said ordinance and the said notice and demand of said Inspector of Buildings, determined to cause said building to be demolished, and on the date last aforesaid these defendants entered into a contract with one Frank Harrigan, whereby the said Harrigan, in consideration of certain promises on the part of the defendants, undertook to demolish said building and remove the same and the debris thereof from said premises. That thereafter, and on the 1st day of November, 1895, the said Harrigan commenced the demolition of said building as such contractor, and has since completed the work of demolishing and removing the same and the debris thereof from said premises. That the work of demolishing said building by said contractor as aforesaid constitutes the alleged wrongs and trespasses complained of by said plaintiff in said complaint.

From the record it appears that the plaintiff was not incorporated until the 15th day of March, 1895, although on the first of that month the articles of the corporation had been prepared, and that said corporation had been arranged for and agreed to by the persons who were engaged in forming the same. It is admitted by both parties that a lease of said room No. 230, by defendants to the said J. W. Houston, for the period of two years from March 1st, 1895, was made; that said room was located in a large building owned by defendants. There was no lease to J. W. Houston of the ground upon which said building stood.

M. J. Mitchell, a witness for plaintiff, was asked by plaintiff's counsel, "whether he had had any conversation with J. W. Houston concerning the subletting of said room No. 230," and over the objection of the defendant's counsel, was allowed to answer. The witness answered "that the plaintiff through him as manager, leased one-half of said No. 230 Main street on the first day of March, 1895, from said Houston by parol lease for the period of two years and until March 1st, 1897," and defendant's counsel moved the court to strike out the answer of the witness upon the ground" that the said answer was irrelevant, immaterial and incompetent for the reasons stated in the objection to the question."

The following were among the reasons stated, to wit: That the plaintiff, at the date mentioned, not being then incorporated, had no legal existence, and that no one could be authorized to act for it, or in its behalf; that the lease being by parol, and for two years, was absolutely void, under the statutes of Utah. The motion was overruled, and exceptions taken.

The witness Mitchell, was also asked whether the said J. W Houston, ever gave him or the plaintiff any notice to quit and surrender one-half of said room No. 230. To this question defendants, by their counsel, objected upon the ground that same...