Carroll v. Peake
IN the Circuit Court of the United States, for the district of Columbia, the defendant in error, instituted a suit against the plaintiff in error, to recover damages arising out of alleged breaches of an agreement, in the nature of a lease, dated 18th of December 1819. The declaration stated the agreement; and the damages claimed, were as an indemnity for expenses incurred by the plaintiff, under the agreement, for losses of profits, and for not turning out the tenant who was in possession of the property, when the agreement was made. To support the issue on his part, the plaintiff offered to read in evidence to the jury, the following copy of a paper, (the original of which, was signed by Joshua Peake,) and which was admitted to be wholly in the handwriting of the plaintiff in error.
'I agree to rent of Daniel Carroll, of Dudington, the land rented heretofore to Wilfred Neale, the same being in St. Mary's county, for which I oblige myself to pay, on the 1st day of January 1821, for one year, from the 1st of January 1820, six hundred dollars, ($600,) and to pay all taxes on the same, independent of the above rent; and also, I oblige myself to keep the premises in good repair, and not to commit, nor suffer to be committed, any waste on the said premises.
Witness my hand, this 18th day of December, 1819.
It is agreed, that the taxes shall be paid by Joshua Peake, and the said Carroll will allow the same on the tax bill, receipted, out of the rent.
(Signed,) JOSHUA PEAKE.
WILLIAM DUDLEY DIGGES.'
To the admission of this paper, by the Court, the counsel for the plaintiff objected, but the Court allowed it to be read by the jury, upon which, they rendered a bill of exceptions; and by writ of error, the cause was brought before this Court; and was argued by Mr. Key and Mr. Cox, for the plaintiff in error, and by Mr. Jones, for the defendant.
For the plaintiff in error, it was said, that the declaration sets forth the agreement of lease, that the possession of the property was to be given, the expenses to which the lessee was exposed; and that the plaintiff in error did not perform any of the acts necessary, to turn out the tenant, who was in possession of the land when the lease was to commence.
The declaration should have averred a readiness on the part of the lessee to comply with his contract, as to time and place. Savary vs. Goe, 3 Washington's Decisions, 140.
The proper day to deliver possession, was the day on which the lease was to commence; and the declaration should have averred, that the lessee was at the place in person, or by attorney, at that time, to receive it. Instead of this, the breach is laid, if any where, in the county of Washington, and the property described in the lease, is in the county of St. Mary's; nor is it averred, that, by the lease, the plaintiff in error was bound to turn out the person in possession, although damages are claimed for not doing this.
2. The party who gives a lease, is not bound to turn the prior tenant out of possession. The lessor has, by the lease, parted with the control of the property; and the lessee should proceed, under the law of Maryland, to obtain the possession; but, if it was the duty of the lessor to obtain the possession for the lessee, the lessee should have required this of him; and his non-compliance with the demand should have been averred.
3. The paper admitted in evidence, was a copy; and the copy of a deed is not evidence, unless the original is destroyed, or lost. It is not said the paper was a true copy; and the original, if in possession of Peake, might have been produced; or, if in the possession of the plaintiff in error, might have been called for.
Mr. Jones, for the defendant in error, contended, that, by the operation of the statute of Jeo fales, the verdict of the jury had cured all the defects of the declaration, if any existed; and that the declaration contained every necessary statement and averment for the plaintiff's case. When the condition in an agreement is precedent, special performance must be set out and averred; and, when a tender is pleaded, it is necessary to set forth minutely, every thing of time and place. In this case, it was not required to declare specially.
2. The Act of Assembly of Maryland, gives to the landlord, only, and not to the lessee, a right to proceed, for possession, against persons 'holding over.'
3. The 'copy' of the paper, which copy was wholly in the handwriting of the plaintiff in error, and who must have kept the original paper, was primary, and not secondary evidence, quoad, the matters in controversy. It was evidence against the lessor, and was in the nature of a counterpart of the agreement; and necessary to charge the lessor, who had not signed the lease, and who, it must be presumed, retained the possession of it.
Mr. Justice TRIMBLE delivered the opinion of the Court.--