Horowitz v. Speese

VICTOR E. SHAW, J.,

pro tem.

By the terms of a lease in the usual form defendant demised and let to plaintiff a certain building for the term of five years from September 1,

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1912, at a monthly rental of $250, payable in advance, and containing a clause to the effect that in case of default in the making of such payments, or in complying with any of the covenants therein contained, the lessor might re-enter and remove all persons therefrom.

The action is by the lessee to recover damage for the breach of the lease, plaintiff claiming that defendant refused to give him possession of the property and leased it to another.

A jury trial was had resulting in a verdict of one dollar in favor of plaintiff, for which judgment was entered. The appeal is from an order of the court denying plaintiff’s motion for a new trial.

Appellant’s chief claim for a reversal, and conceded to be the only error necessary to consider if said contention be not sustained, is that the court erred in admitting in evidence the judgment-roll in a former suit between the same parties wherein it was by the superior court on January 14, 1913, adjudged that defendant was entitled to possession of said leased premises, and in connection therewith, instructed the jury that plaintiff’s right to the possession of the premises terminated on October 23, 1912, and that plaintiff’s damage must be deemed limited to such as he sustained between said date and September 1st preceding. Reference to the judgment-roll so received in evidence discloses that the subject of said action was plaintiff’s asserted right to possession of the premises in question under and by virtue of the lease here involved from which he alleged he had been ousted October 23, 1912. It was adjudged therein that defendant and not plaintiff was entitled to possession. This judgment, not set aside and from which no appeal was taken, upon well-settled principles of law, must be deemed a final determipation of plaintiff’s rights under the lease.

The theory upon which the court submitted to the jury the question of damages sustained by plaintiff for the period extending from September 1st, the date when under the terms of the lease he was to’ have possession, and October 23d, is that he did not have possession during all of said period, and if, notwithstanding evidence tending to show that he had refused to comply with the covenant as to payment of rent, the jury found that he was entitled to possession, it might fix the damage sustained by reason of- such fact. In other words,