Summary
holding that changing the locks by sublessor terminated sublease agreement, and trial court properly withdrew sublessor's counterclaim for rent from the jury
Summary of this case from Grenfell v. AndersonOpinion
No. 70-648 (Supreme Court No. 24009)
Decided June 15, 1971. Rehearing denied July 7, 1971. Certiorari denied September 7, 1971.
Action for conversion of personal property by assignee of lease. Counterclaim for rent due by assignor of lease. Trial court held conversion established as matter of law and dismissed counterclaim. Defendant appealed.
Affirmed
1. LANDLORD AND TENANT — No Notice Given — Alleged Defect — Terms of Lease — Reentry — Constitutes Eviction. Where no notice to correct alleged default was given to assignee of lease by assignor as was required by terms of lease, the provision of lease permitting landlord to retake possession of premises upon default did not become operative, and situation is controlled by general rule that reentry by landlord or willful act of landlord which materially disturbs the possession of the tenant constitutes an eviction and terminates the lease.
2. CONVERSION — Defendant — Changed Locks — Removed Plaintiff's Property — Ruling for Plaintiff — Correct — Matter of Law. Where, upon being told that plaintiff did not intend to pay the next month's rent and wanted to move out, defendant, assignor of lease, had locks changed and removed plaintiff's goods from the store, trial court was correct in ruling that, as a matter of law, defendant was guilty of converting plaintiff's personalty.
3. Offer to Return — Plaintiff' Goods — Imposed Condition — No Legal Foundation. Where assignor of lease, having removed assignee's goods from store, offered to return the goods if assignee would reaffirm the lease, the imposition of such condition had no legal foundation and did not prevent the taking and retention of the goods from being a conversion.
4. DAMAGES — Conversion — Interest — Date of Conversion — No Error — Date Action Begun — As Prayed For. One whose property is converted is entitled, as part of his damages, to interest from the time of the conversion, therefore there was no error in trial court's action in adding to the judgment the amount of interest computed from date action was commenced, as was prayed for in complaint.
Error to the District Court of Jefferson County, Honorable Christian D. Stoner, Judge.
C. J. Berardini, for plaintiffs in error.
Walter F. Scherer, Clarke W. Karr, for defendant in error.
This case was transferred from the Supreme Court pursuant to statute.
Defendant in error (Canniff) sued Deeb's Carpet Studios, Inc., (Deeb) and others, who are not parties in this court, to recover damages for conversion of personal property. Deeb counterclaimed for rent claimed to be due under a lease agreement between the parties.
There is no substantial dispute as to the material facts. Deeb was lessee of a store in the Lakewood Shopping Center. He assigned his interest in the lease to Canniff. Under the terms of the assignment Deeb remained obligated to perform all the covenants of the lease, and Canniff assumed and agreed to pay the rent and perform the covenants. The assignment was effective February 1, 1961, and the term of the lease ran until March 31, 1962. By agreement, Canniff took possession prior to February first and set up a carpet and tile business in the premises. Canniff paid the rent for the months of February and March, 1961.
In the late afternoon of March 24, 1961, Canniff advised Deeb that he, Canniff, was not going to pay the April rent and wanted to move out. That night Deeb had all the locks changed on the store, and Canniff was deprived of possession for the final week of March.
During that week Deeb's attorney advised Canniff's attorney that Canniff could move back in if he would reaffirm the lease. Canniff maintained that the lease had been terminated by Deeb's actions. On March 31, 1961, Canniff commenced this action.
After April 1, 1961, Deeb removed Canniff's goods from the store and placed them in a warehouse. He advised Canniff's attorney that they would be returned when and if Canniff would reaffirm the lease.
Two trials were held. After the first trial, the trial court dismissed the counterclaim and submitted only Canniff's claim of conversion to the jury, which returned a verdict in favor of Deeb. Motions for a new trial were filed by both parties and were granted. A new trial was held to a jury on the claim of Canniff and the counterclaim of Deeb. At the conclusion of the evidence, the trial judge again dismissed the counterclaim and ruled that Deeb had converted the property of Canniff, as a matter of law, and submitted only the question of damages to the jury. The jury returned a verdict in the sum of $6,944.01 and the court entered judgment for that amount plus interest at six percent per annum from the date of the commencement of the action. The court by supplemental order computed the interest at $3,050 and entered a corrected judgment for $9,994.01 and costs. It is to this final judgment that Deeb asserts error.
Deeb asserts that the trial court erred in dismissing his counterclaim and in ruling that as a matter of law he was guilty of converting the goods of Canniff. We affirm the trial court.
I.
The first issue to be decided is whether Deeb's action in changing the locks on the store terminated the lease and thus relieved Canniff from his obligations under the assignment. We hold that it did.
Although the agreement between the parties was an assignment of the lease, they treated it as a sub-lease. Canniff paid the rent to Deeb who then paid the original lessor, who was not a party to the assignment. The actions of the parties, prior to any dispute, which evidence their intent will be given force and effect if consistent with legal principles. Fellers-Schoonmaker Homes, Inc. v. Five Star Homes and Real Estate, Inc., 158 Colo. 163, 405 P.2d 677.
Deeb claimed that although Canniff had paid the rent through March 31, his declaration that he would not pay the rent for April constituted an anticipatory breach which entitled Deeb to retake possession without terminating the lease, and that this is what he did. The lease provided that if the tenant defaulted in the payment of rent, "the landlord shall give to the tenant three (3) days notice to correct" the default. Any other default required the landlord to give ten days notice. If the default was not corrected within the specified period then the landlord could elect either to terminate the lease, evict the tenant, and retake possession or to retake possession without terminating the lease.
[1] Assuming the statement by Canniff that he was not going to pay the rent in April constituted a present default under the lease, the "landlord", Deeb, did not give notice as required by the lease and the options which would have followed the giving of notice did not become operative. See Miller v. Sparks, 4 Colo. 303. Therefore the situation is controlled by the general rule that a reentry by the landlord or a willful act of the landlord which materially disturbs the possession of the tenant constitutes an eviction and terminates the lease. Milheim v. Baxter, 46 Colo. 155, 103 P. 376, Central Business College Co. v. Rutherford, 47 Colo. 277, 107 P. 279. See Berae Co. v. Gorman, 168 Colo. 551, 452 P.2d 379.
Deeb's conduct in changing the locks and evicting Canniff under the undisputed facts in this case terminated the lease, and the issue raised by the counterclaim was properly withdrawn from the jury.
II.
[2] The trial court was correct in ruling that, as a matter of law, Deeb was guilty of converting Canniff's personalty. In Hughes v. Coors, 3 Colo. App. 303, 33 P. 77, a landlord evicted his tenant prior to termination of the lease, locked the tenant out, and refused to permit the tenant's chattels to be removed. The court held this to be a conversion, stating that the rule is "so well settled and elementary, that no authorities need be cited in its support."
[3] Deeb's agreement to return the goods if Canniff would reaffirm the lease did not prevent the taking and retention from being a conversion. Canniff had no obligation to reaffirm the lease after its termination. The condition imposed had no legal foundation and thus did not relieve. Deeb from the consequences of his wrongful taking. Schlittenhardt v. Bernasky, 147 Colo. 601, 364 P.2d 586; Herbertson v. Cohen, 132 Colo. 231, 287 P.2d 47.
III.
Deeb further asserts that Canniff is not entitled to interest from the date of commencement of the action, and that the trial court erred in computing the interest from that date and adding it to the judgment. We do not agree. The instruction to the jury which set forth the elements to be considered in determining Canniff's damages did not include interest but was limited to a determination of the value of the property converted by Deeb.
[4] The rule in Colorado is, "* * * that one whose property is converted is entitled, as part of his damages, to interest at the legal rate from the time of the conversion. * * *" (Emphasis supplied.) Montgomery v. Tufford, 165 Colo. 18, 437 P.2d 36. Therefore the inclusion of interest in the judgment was proper. In this case Deeb asked for interest only from the date of commencement of the action and was properly limited to the amount prayed for.
The judgment is affirmed.
JUDGE DUFFORD and JUDGE PIERCE concur.