Kovner v. Dubin

The demurrer to the plea in abatement in this court questions the legal sufficiency of the three grounds of abatement. The second of these is that it does not appear that the writ was allowed by a judge or clerk of the City Court, and the third is that the bill of exceptions was not filed within forty-eight hours from the entry of the judgment of the City Court. Both of these grounds are untenable, and counsel stated in argument that they were not pressed. The first and only ground of abatement then, which we are called upon to consider, is whether the law requires that the paper served upon the defendant must contain not only a copy of the writ, but also a copy of the record from the City Court, which is referred to in the writ as Exhibit A.

The writ of error is based upon the record of the City Court and the latter forms an essential part of the proceedings in this court. All were properly filed and before us in this court. By the common and better practice, the records of the lower court in a case of this kind should be incorporated in or annexed to the writ, and so served upon the defendant. 2 Swift's Digest, pp. 708, 709; Practice Book, pp. 505, 506. But our present statute permits writs of error to be served and returned as other civil process. General Statutes, § 5857. Under our Rules of Practice it is only necessary to set out the matters in question in a complaint according to their legal effect, in such a way as fairly to apprise the adverse party of the state of facts which it is intended to consider. Practice Book, p. 283, § 181. When the condition of a bond is not noticed in a complaint, a copy may be filed in the court. Idem § 177. So in an action brought on the common counts, the bill of particulars may be filed afterward in the court. Idem, p. 279, § 165, p. 288, § 195. And where the plaintiff desires to make any document a part of his complaint, he is permitted to refer to it as an exhibit instead of reciting it in full, and the document may be filed in court afterward. Idem, p. 283, § 178.

In the present case, the record of the lower court was referred to in the writ as Exhibit A, but was not in fact annexed, and therefore a copy was not served upon the defendant with the writ itself, but it was afterward filed in this court. Service of the writ was accepted by counsel for the defendant, and he has appeared and argued the case upon its merits. It does not appear that the failure so to serve a copy of this record on the defendant operated in any way to his prejudice. He was, of course, as familiar with that record as the plaintiff was.

The demurrer to the plea in abatement is sustained and the motion to strike out is denied for the reason that the demurrer was the proper pleading. In passing, attention is called to the language used by us in the case of Noll v. Moran, 94 Conn. 452, 454,109 A. 241: "Bringing up the evidence was a superfluous proceeding and one that in no way enlarges the legitimate sources of our information, [and] its mere presence cannot affect one way or another the merits of the assignment of any claimed error of law properly presented by the bill of exceptions." There was no justification for incorporating the transcript of the evidence in this record; the court should have refused to certify it.

Since these are the only objections to the record which are made by the defendant, we must assume that he admits it to be otherwise correct, and is in the position of making the common law plea of "nothing erroneous." We proceed, therefore, to a consideration of the record on its merits.

The writ makes twelve assignments of error. The fifth, sixth and ninth do not require our consideration, since they invite our inspection of the evidence given in the City Court, and this is not our province. The bill of exceptions is the source of our information as to the facts established at that trial, its function being similar to that of a finding on an appeal. Noll v.Moran, 94 Conn. 452, 456, 109 A. 241; Brown v.Cray, 88 Conn. 141, 143, 89 A. 1123.

The first assignment denies the legal sufficiency of the amended answer. This answer, among other things, alleges that the defendant was in this store under a written lease from the plaintiff and has "continued in possession thereof, and has at all times complied with the terms and conditions contained in said lease." This assignment does not require extended consideration, for it is too general and a bad assignment of error. General Statutes, §§ 5820, 5833; Pavlovchik v. Lupariello, 101 Conn. 567, 127 A. 18;Hine v. McNerney, 97 Conn. 308, 116 A. 610. However, the allegations quoted constitute a good defense to the action of summary process.

The second assignment is that it was error to hold that the failure to pay the rent during the first ten days of August was not a breach of the covenant of the lease. It was provided in the lease, that if the rent remained unpaid for more than ten days after it became due, "then it shall be lawful for the said party of the first part, and without any previous demand or notice whatever, to re-enter and take possession of said leased premises, and such re-entry and taking possession shall end and terminate this lease."

Under these provisions, the failure to pay the rent during the first ten days of the month of August, 1925, was a breach of the defendant's covenant, and he thereby lost his right to a continuance of the lease and the lessor gained the right to declare a forfeiture of the lease in the manner provided by law. HartfordWheel Club v. Travelers Ins. Co., 78 Conn. 355, 358,62 A. 207. The breach of the covenant was not in and of itself a forfeiture. In order to actually terminate the lease, it was necessary for the lessor thereafter to do some unequivocal act, showing to the lessee his intention so to terminate it. Holly v. Brown,14 Conn. 255, 269; Bowman v. Foot, 29 Conn. 331, 337-342;Read v. Tuttle, 35 Conn. 25, 26; Camp v. Scott,47 Conn. 366, 369, 370; Hartford Wheel Club v. Travelers Ins. Co., 78 Conn. 355, 358, 62 A. 207; Thompson v. Coe, 96 Conn. 644, 651, 115 A. 219.

At common law it was necessary for the lessor to make demand for the rent in order to lay a foundation for forfeiture, and this was to be made upon the premises at a reasonable hour upon the last day the rent was payable under the terms of the lease. The purpose of this requirement was to give the lessee an opportunity to pay the rent due, and so to avoid a forfeiture of his lease. The lessor was also required to make a formal re-entry upon the premises. Bowman v. Foot, 29 Conn. 331, 340; Hartford Wheel Club v. Travelers Ins. Co., 78 Conn. 355, 358, 62 A. 207;Chapman v. Harney, 100 Mass. 353; Sperry v. Sperry,8 N. H. 477; Moran v. Lavell, 32 R. I. 338,79 A. 818; Willard v. Benton, 57 Vt. 286. It is competent for the parties, by proper provisions in the lease, to provide for a waiver of these requirements. FortOrange Barbering Co. v. New Haven Hotel Co.,92 Conn. 144, 153, 101 A. 505.

In the lease before us there is not the specific waiver which appeared in the Fort Orange case, but there is a general waiver of "demand and notice of every kind and description whatever, which, were it not for said waiver, might otherwise be necessary in obtaining possession of said premises."

It is not necessary for us to decide whether this clause had the effect of relieving the lessor of the common-law requirement of a re-entry to terminate the lease. No demand or re-entry was in fact made, but the lessor attempted to terminate the lease by the letter of August 14th. However, on the 13th, the defendant's general manager, Maniere, tendered cash for the rent to the wife of the lessor and it was refused, and on the 14th (probably before the letter of termination actually reached the lessee) a similar offer of the rent was made by the wife of the lessee to the wife of the lessor and again refused. It becomes necessary to decide, therefore, what effect, if any, these tenders had upon the right of the lessor to terminate the lease in any manner on the 14th.

In brief and argument, the plaintiff contends that no legal tender of the rent was made before the 17th of August, when it was tendered by the constable in gold. In support of this, and in many other places in his brief, counsel for the plaintiff refers to the transcript of the evidence and ignores the bill of exceptions signed by himself and approved by Judge Ross, to which alone we must have recourse for our facts. The claim that the cash offered on the 13th and 14th was not "legal tender" is not made the basis of an assignment of error, and it does not appear that this question was raised in the court below, nor did the refusal to accept the cash rest upon that ground, so far as appears.

The tender of the cash on the 13th was refused by the lessor's wife. The refusal was not upon the ground that the money tendered was not a legal tender, and under the circumstances a further tender would have been futile, and it obviously was, as shown on the following day. Its competency as a tender cannot be questioned, provided the wife had authority to accept the tender. The agency of the wife for this purpose is clearly shown by the facts stated in the bill of exceptions. Benjamin v. Benjamin, 15 Conn. 347, 357.

The rule is well established and calls for no more than a citation of some of the authorities, that a tender of the rent, after a breach of a covenant of payment, and before the declaration of a forfeiture by some unequivocal act on the part of the lessor, saves the lessee's rights and prevents the completion of the forfeiture by the lessor thereafter. Davis v. Taylor, 276 F. 619; North Chicago Street R. Co. v. LeGrand Co., 95 Ill. App. 435; Gradle v. Warner,140 Ill. 123, 29 N.E. 1118; Tuttle v. Bean, 54 Mass. (13 Metc.) 275; Jones v. Reed, 15 N. H. 68; Moran v.Lavall, 32 R. I. 338, 342, 79 A. 818; Rosenberg v.Taft, 94 Vt. 458, 111 A. 583; Houghton v. Cook,91 Vt. 197, 100 A. 115; Planters Ins. Co. v. Diggs, 67 Tenn. (8 Baxt.) 563; Lewis v. St. Louis, 69 Mo. 595;Carondelet v. Wolfert, 39 Mo. 305.

There is no error

In this opinion the other judges concurred.