Hickey v. United States

delivered the opinion of the court:

On the 28 th July, 1851, James Eldridge entered into articles of agreement with Thomas Corwin, the Secretary of the Treasury, for the erection and lease to the United States of four certain warehouses, in the city of San Francisco, California, the rent not to exceed $1,500 per month each ; the lease was for ten years. '

By the terms of the lease, the stipulated rent of $1,500 per month for each of said warehouses was to continue for two *404years, and after that, at the end of each two years, there were to be referees chosen by the parties to rearrange and determine the rent for the two succeeding years.

The Avarehouses were finished and ready for occupation on the 1st May, 1852. The United States entered into possession and paid the rent until the 1st May, 1854. Then referees were chosen, and a new assessment of the rents for the next two years was made at the same rate. In February, 1856, under instructions from Mr. Guthrie, then Secretary of the Treasury, Milton S. Latham, collector of the port of San Francisco, sub-leased these warehouses to P. J. Hickey, the claimant in this case, for the rent of $500 per month for the warehouses, subject, after the 1st May, 1856, to the reassessment of the rent by the referees, as provided in the lease from Eldridge to the United States. This lease contained the following clause:

“ Provided, nevertheless, that the sum of two hundred and fifty dollars per calendar month is hereby saved and reserved to the said party of the second part, by the said party of the first xiart, during the term of the aforesaid lease, as a bonus to the said party of the second part for leasing said warehouses, said amount of two hundred and fifty dollars to be paid at the expiration of each month after the execution of this instrument, and to continue monthly until the completion of the same.”

It also contained a clause of reentry by the United States for non-payment of rent. Hickey entered into possession under this lease, and paid the rent for the months of February, March, and April, 1856, as stipulated, to Mr. Latham, the collector of the port, he making out the bills for the rent at $500 per month, and deducting the $250 bonus or credit, which the Government allowed to Hickey on his lease. An effort was then made to have a reassessment of the rent, according to the original lease between Eldridge and the United States, but the referees chosen for that purpose failed to agree. No umpire was chosen, and matters remained in this situation, the claimant being in possession but paying no rent subsequent to 1st May, 1856, until the 13th April, 1857. On that day the United States made a compromise with Eldridge, paying him $110,000, he releasing them from further liability for rent, and they assigning' to him the lease with the claimant, and all rents then due upon the same, or to become due thereafter.

*405In August, 1857, Eldridge instituted proceedings before a justice of tbe peace in San Francisco, tinder tbe landlord and tenant laws of California, to.recover possession of tbe premises. The claimant notified tbe collector of tbe port and tbe district attorney of tbe pendency of these proceedings. On tbe 5th September, 1857, judgment of restitution of tbe premises was rendered against the claimant and execution awarded, and be evicted and Eldridge put into possession. The Lighthouse Board bad certain materials and supplies stored in these warehouses while in possession of tbe claimant. Tbe bill was regularly made out and certified by tbe proper officers, and amounted to tbe sum of $1,370 75.

The claimant seeks to recover tbe monthly bonus reserved of $250, for each month from tbe 1st May, 1856, until tbe 1st May, 1862, being six years, and amounting to $18,000, and thfe account for storage already mentioned.

By tbe express terms of tbe lease between Hickey and tbe United States, what is called in tbe lease a bonus is to be a mere reservation out of and deduction from tbe rent to be paid, and continued only while tbe lease was in force, and no longer. When tbe lease was at an end this payment stopped. As the sub-lessee of tbe United States, Hickey, as against Eldridge, acceded to all tbe rights which they held under tbe first lease from him, and it was bis duty, as well as interest, to have tbe proper assessment of the rent made, and if Eldridge failed, to compel it by proper legal proceedings. This be did not do or attempt. ■ Instead of that be occupied from tbe 1st of May, 1856, until tbe time of bis eviction in September, 1857, without tbe payment of any rent whatever. For bis default be was evicted by due process of law. This determined tbe lease, and all his rights in it ceased as of that time. Tbe lease from tbe United States to claimant and all tbe rent due on it was assigned to Eldridge. Tbe bonus that accrued prior to the eviction Hickey may set off against any demand for rent which Eldridge might prefer against him. He can recover against no one for any bonus after bis eviction for bis own default.

For tbe amount of tbe account, as above stated, the claimant is entitled to recover.

Judgment is to be entered for claimant in tbe sum of $1,370 75.

concurring:

I regard all of tbe evidence produced by tbe claimant, save that certified'by tbe Secretary of tbe Treasury, as utterly incompetent. Thus, exhibit H is an ex parte certificate given by one who, the petition alleges, was chosen to reappraise tbe rent. Thus, exhibit L is proved by an ex parte affidavit made many years before tbis suit was brought. Thus, exhibit K is proved by the informal, undated, unattested certificate of a justice of the peace.

Assuming the facts discussed to be facts proven, the claimant has established a good cause of action, but has shown no damages whatever.

The lease under which the defendants acquired the demised premises reserved a certain rent of $1,500 a month. But, so says the lease, “it is understood, covenanted, and agreed that the United States shall have the privilege, if the Secretary of the Treasury shall require it, at the end of two years from the commencement of the term, and so on from two years to two years during the term, to have an assessment of what shall be a fair, proper, and'reasonable rent for the said houses for the then next ensuing two years.” This assessment was not a fixed condition ; it was a “privilege” of the United, States ; it was to be only “ if the Secretary of the Treasury shall require it.”

The lease from the United States to Hickey contained two agreements on the part of the defendants: 1st, that at the expiration of the two years they were to cause an appraisement of the rent to be made, as provided by the terms of the preceding lease under which they held; 2d, a covenant that the claimant should at all times during the term “ peacefully and quietly have, hold, and enjoy the said demised premises without any manner of let, suit, trouble, or hinderanee of or from the said party of the first part or any other person or persons whomsoever

The defendants broke both of these agreements. The claimant agreed to pay the fixed rent up to the expiration of the two years, and he did so. As between himself and the defendants there was then nothing for him to pay till the appraisement should determine the amount. The claimant kept his agreement and was guilty of no default whatever. He was evicted because the defendants did not keep theirs.

It is'argued that the proceedings for restitution of the *407premises before a justice of tlie peace bound tbe claimant and now bars bim from questioning tbe rightfulness of the eviction. There are several answers to tbe argument. 1st. Tbe claimant was not bound to resist. He might suffer the eviction, and then bring bis action under the covenant that be should not be molested by “suit.” 2d. The judgment for restitution went by default. Hence tbe fact involved of rent being due cannot be set up as an estoppel. 3d. Tbe defendants here were notified to defend that suit, and appeared for and on behalf of tbe claimant by their district attorney. They suffered the suit to go by default and without notice to the claimant of their withdrawal. The United States are not bound by the wrongful acts of their agents, nor can they take advantage of them. It was this law officer, acting as such, who suffered the default, and from it they can reap no advantage. 4th. If, as the defendants claim, the proceedings of restitution were instituted by Eldridge, not as landlord and owner on the original lease under which the United States held, but merely as assignee of Hickey’s lease and successor of the United States, then the United States were neither parties nor inlvies to the proceeding. They would not have been bound by it if it had gone contrariwise, nor can they bind their covenantee with it when it went against him. 5th. It may be that there was rent due to Eldridge, and that the eviction (as between Eldridge and Hickey) was lawful and just ; but if so, it was because the United States violated their agreement in neglecting to have the rent reappraised. But notwithstanding the justice of the case, no damages can be awarded, for none are shown. The claimant is mistaken in supposing the so-called ubonus” to be the measure of his damages. It was but a deduction from the rent.

As to the second cause of action it falls within the letter of the statute of limitations. It is not a claim which “ accrued six years before the passage” of the act 3d March, 1863, (12 Stat. L., pp. 763, § 10;) yet, is a claim wdiich accrued before the passage of the act. It is one of that anomalous class of cases where, if the statute be construed literally, a claimant may have been left with but a single day wherein to bring suit. The claim accrued in October, 1857; the act passed in March, 1863; the six years from the time the claim accrued expired in October, 1863; the time wherein suit might have been brought extended but from the 3d March to the 1st October. But the *408literal meaning is against the spirit of tbe act, which, manifestly intended that there should be at least three years allowed to every claim. The statute, however, is not pleaded here; it would be unjust to allow it to be. Judgment upon the merits should be rendered for the claimant.