International Trust Co. v. Schumann , 158 Mass. 287 ( 1893 )

Barker, J.

Of the parties to these actions between landlord and tenant, the latter, having remained in possession until the end of the term demised, now alleges as an eviction the fact that during the term his landlord entered on the premises under claim of right to repossess them for breach of covenants by the tenant, and brought a process to eject the tenant, on which final judgment for the tenant was rendered; and he further alleges, as breaches of the implied covenant for quiet enjoyment, the same entry and suit, and the fact that the landlord, knowing that the premises were of value to the tenant only for his business of common victualler and seller of liquors, caused the license commissioners to refuse him a liquor license, and also caused his license as a common victualler to be taken from him wrongfully and without right. None of these acts were an eviction of the tenant, or an ouster equivalent to an eviction, for the reason that he remained in the occupation of the premises until the end of his term. Fuller v. Ruby, 10 Gray, 285. Bartlett v. Farrington, 120 Mass. 284, and cases cited. Skally v. Shute, 132 Mass. 367, 370. Lounsbery v. Snyder, 31 N. Y. 514. Bennet v. Bittle, 4 Rawle, 339. Hannam v. Woodford, Skin. 300. And for the same reason, if for no other, none of them worked a breach of the implied covenant for quiet enjoyment. Ellis v. Welch, 6 Mass. 246, 252. Dexter v. Manley, 4 Cush. 14. George v. Putney, 4 Cush. 351, 355. Gardner v. Keteltas, 3 Hill, (N. Y.) 330. Mayor & Aldermen of New York v. Mabie, 3 Kernan, 151. Frost v. Earnest, 4 Whart. 86. Schuylkill Dauphin Railroad v. Schmoele, 57 Penn. St. 271. Moore v. Weber, 71 Penn. St. 429. Hayner v. Smith, 63 Ill. 430. Gazzolo v. Chambers, 73 Ill. 75.

The entry was a formal one, not interrupting the tenant’s occupation, and doing him no damage. The process was not a malicious suit, and for it his costs as the prevailing party are the only remedy. White v. Dingley, 4 Mass. 433. Lindsay v. Larned, 17 Mass. 190. Fisher v. Barrett, 4 Cush. 381, 384.

Assuming that the entry and suit were an unjustifiable attempt to oust the tenant, which, if he had yielded, would have been an eviction and a breach of the covenant, as he did not yield and was never ousted, the entry was at most a mere trespass, for which he might recover nominal damages in a suitable action, but not in his present suit, which, by his declaration, he has elected to treat as an action of contract for breach of covenant.

The alleged acts of the landlord with reference to the tenant’s licenses from public authorities had no tendency to interrupt, and did not interrupt; the tenant’s possession. See De Witt v. Pierson, 112 Mass. 8, 11; Groustra v. Bourges, 141 Mass. 7; Stevens v. Pierce, 151 Mass. 207: Dennett v. Atherton, L. R. 7 Q. B. 316; Newby v. Sharpe, 8 Ch. D. 39; Chicago Legal News Co. v. Browne, 103 Ill. 317; McLarren v. Spalding, 2 Cal. 510; Connor v. Bernheimer, 6 Daly, 295, 299; Baughman v. Portman, 14 S. W. Rep. 342; Abadie v. Berges, 41 La. An. 281.

As the tenant could neither recoup nor recover, the rulings were right. Exceptions overruled.