Frederick v. Daniels , 74 Conn. 710 ( 1902 )

By the words "value of the premises," we suppose the court in its charge to the jury meant rental value or value of the use of the premises as used in defendant's request. Certainly the rule as stated by the court for determining the amount of damages for the period during which the defendant was entitled to damages, was as favorable to the defendant as that contained in his request.

Whether that rule is the correct one we have no occasion to decide. The defendant does not complain of the rule as laid down by the court as to the measure of damages during a given period, but to the statement of the court that under the alleged contract to repair, etc., made at the time of the leasing of the premises, September 21st, 1897, the defendant would only be entitled to damages sustained from a breach of such contract during the first month of the defendant's occupation of the premises, and that to entitle him to damages for a failure to repair, etc., after the first month, the defendant would be required to show a renewal of such contract for the subsequent months, or some of them.

The trial court committed no error in so instructing the jury. It was undisputed that the renting in September, 1897, was by a parol lease, reserving a monthly rent, in which the time of its termination was not agreed upon. By § 2967 of the General Statutes this was a lease for one month only.

The counterclaim does not allege that there was any agreement or understanding that the defendant was to occupy the premises more than one month, whether the plaintiffs made the repairs or failed to make them. In either event, the lease as described in the pleadings terminated at the end of one month, and the defendant might then properly have left the premises, had he chosen to do so, or the plaintiffs might have compelled him to quit possession by proceedings in summary process.

There is no allegation in the counterclaim that the original agreement of 1897 to make these repairs and which was to be performed immediately, was intended to apply to any possible occupation after the expiration of the lease for one month. It is not averred that the occupation, either during the nine months immediately preceding the 21st of March, 1891, for which rent is sought to be recovered by this action, or during any other period after the expiration of the first month of occupancy, was under the special agreement of 1897 to make certain repairs. On the contrary, the counterclaim alleges, in effect, merely that the defendant in 1897 entered into possession under the original contract to repair, but that he remained in occupation after the expiration of his lease because the plaintiffs renewed their promise to repair, and, apparently in support of his claim that under promises made subsequently to 1897 he was entitled to damages during his occupation after the first month, the defendant offered evidence to prove that the plaintiffs made this promise every time the defendant paid rent.

Even by his written request to charge, the defendant did not ask the court to instruct the jury that upon proof of the agreement to repair, made in 1897, he was entitled to recover the damages sustained during his occupation subsequent to the first month. The language of the request is, that the court should charge that the defendant was entitled to recover the damages claimed to have been sustained during such occupation, if the jury "find the allegations of the cross-complaint sustained by the evidence."

In view of the allegations of the counterclaim, to which we have referred, and of the facts as to the alleged renewals of the promise to repair, which the defendant claimed to have proved, we think the trial judge charged the jury substantially in accordance with the defendant's request, as he was justified in understanding it from its language, taken in connection with the pleadings and the facts which the defendant claimed to have proved, and that no injustice has been done the defendant.

There is no error.

In this opinion the other judges concurred.