
    Brennan v. Jacobs.
    It is a breach of the implied covenant for quiet possession in a lease, if the lessor, prior to the execution of the lease, has made a verbal lease of the same premises to a third party for one year, and possession is taken and kept by the third party under such verbal lease. And this is so even if the lessee, under the written lease, was put in possession by the lessor.
    . In an action for damages for breach of an implied covenant for peaceable, undisturbed and legal possession, the declaration assigned, as a breach, that the defendant refused and still refuses to grant and deliver such possession. The plaintiff proved his lease, and testified as to his efforts to get possession. It seemed that the premises were in the possession of one Tully, a prior tenant, at the expiration of whose term the lessor issued a writ of habere facias possessionem and the sheriff returned that hehad delivered the premises to the defendant. The plaintiff admitted in his testimony that the defendant gave him duplicate keys when he and the defendant were alone in the house, and then, under objection that the evidence was inadmissible because the narr did not aver an eviction and that the plaintiff was concluded by the sheriff’s return and his own evidence, offered evidence to prove that he had been prevented from obtaining or keeping possession by Tully, who held the original keys; also the acts of Tully in entering while he was in the house; the goods of Tully which had remained in the house; declarations by defendant of his failure to give possession to plaintiff; evidence of a verbal lease given by defendant to Tully for the period covered by plaintiff’s lease; and the damages occasioned him, including the expenses of moving to and from the demised premises, the rent he had to pay for another house, and his loss in trade. Held, not to be error.
    Counsel stated to the court that a witness had been subpoenaed, and an attachment placed in the hands of the sheriff on the morning of the trial, that the witness was not at his place of business, and that it was reported that he had left the county, and then offered notes of testimony of the witness, taken by the court stenographer upon a former trial of the case, under the Act of May 3,1887, l 9, providing for the admission of notes of testimony if a witness “afterward die, or be out of the jurisdiction, so that he cannot be effectively served with a subpoena, or if he cannot be found.” Seld, to be inadmissible.
    March 2, 1888.
    Error, No. 199, July T. 1887, to C. P. Montour Co. to review a judgment on a verdict in an action of covenant, at Sept. T. 1885, Ño. 25. Trunkey and "Williams, JJ., absent.
    Evidence was offered to prove the following facts, at the trial before Albright, P. J., specially presiding:
    On March 11,1885, the defendant executed to the plaintiff a lease under seal, of a hotel property, known as the “ Hudson Biver House,” for one year from April 1,1885. The rent wás to be $400, and this was paid by the plaintiff in advance. At the time the lease was executed, the property was in the possession of one Tully, under a lease expiring April 1, 1885. Tully claimed that, under a verbal agreement with the defendant, he had a right to remain in possession for another year. He accordingly refused to surrender the premises. On April 2, the defendant entered an amicable action in ejectment upon Tully’s lease, took judgment and obtained a writ of habere facias possessionem. Hnder this writ the sheriff entered upon the premises, removed some or all of Tully’s goods and, when he and the plaintiff were alone in the house, delivered duplicate keys to the plaintiff and shortly afterward departed, leavihg the plaintiff in the house. A crowd had gathered outside, in sympathy •with Tully, and his goods were soon moved back into the house. Tully, who still had the original keys, took possession and maintained it for another year. The sheriff made return to the writ of possession that he had given possession to Brennan. Subsequently Tully obtained a rule to strike, off the judgment in ejectment with stay of proceedings, upon entering security, still pending.
    The declaration in the present case sets forth that Brennan “did covenant and agree with the said plaintiff to render peaceable, undisturbed and legal possession of the said premises to the said plaintiff on April 1, 1885, for the current term of one year therefrom as aforesaid;” and assigned as the only breach, that defendant “did refuse, and still does refuse, to grant and deliver peaceable, undisturbed and legal possession of the aforesaid premises, etc.” The pleas were covenants performed absque hoc and covenants performed with leave to give special matter.
    The plaintiff, on the trial, proved the lease and testified to the facts substantially as stated above. He then offered evidence to prove that he was prevented from obtaining possession by Tully, acting under Brennan as lessor; also evidence as to acts of Tully after the sheriff had delivered possession to the defendant.
    Objected to on the ground that the declaration did not set out an eviction by the lessor or any one under his authority. Objection overruled and exceptions. [1, 2.]
    The plaintiff also offered evidence to show the amount of damages suffered by him by reason of the loss of the bargain; expenses of moving to and from the demised premises, the rent he had to pay for another house and loss of trade. Objected to. Objections overruled, evidence admitted and exceptions. [3,4, 5, 6.]
    The plaintiff offered evidence of a verbal lease by defendant to Tully and a tender by Tully to the defendant of the rent under the verbal lease. Objected to, because possession was delivered by defendant to plaintiff, and Tully had no right, even if a verbal lease had been made, to disturb plaintiff’s possession, and because irrelevant under the pleadings. Objections overruled, evidence admitted and exceptions. [Y, 8, 9, 10, 13, 14, 15.]
    The plaintiff offered a lease by Brennan to Tully for the three months prior to April 1. Objected to, objection overruled and exception. [11.]
    Tully was asked by the plaintiff what articles had been left in the house when he was evicted by the sheriff. Objected to. Admitted as bearing on the question of possession. Exception. [12.]
    Plaintiff offered to prove declarations of defendant admitting his failure to give possession to the plaintiff. Objected to as irrelevant. Objection overruled, evidence received and exception. [16.]
    Plaintiff offered to prove circumstances occurring at the time of the execution of the writ of habere facias possessionem tending to show that possession was never really given to him. Objected to, as contradicting their own case. Objection overruled, evidence received and exception. [1Y.]
    
      Defendant testified that two messengers came from Tully on Eeb. 4, to say that he could not raise the money for lease of the premises. The messengers testified that they came on Eeb. 14. When defendant was recalled, he said that if he had stated that it was the 4th he “misspoke” himself. Plaintiff then offered a witness to contradict defendant’s statement. Objected to. Objection overruled, evidence received and exception. [19.]
    Counsel for defendant made the following offer:
    “ Mr. Erazier, the sheriff, had the attachment for George Roberts granted at this term, and was out this morning about half-past five at his office, or place of business, and it was stated that he had gone to Philadelphia. We offer. Mr. Walker as a witness to read his testimony taken on the former trial of this case.” Newton Walker, the stenographer, was then sworn: he testified that he took the notes’ of the former trial, that the said notes were in his hands, and that he was ready to read them. .Objected to by plaintiff, objection sustained, and exception. [18.]
    The court charged, inter alia, as follows :
    [“It seems that Jacobs, the plaintiff, never entered into possession of the premises that were let to him. It has been testified to, and not contradicted, that Thomas Tully, the man who was in possession before April, 1885, continued in the possession of the premises aftér the first day of April, and, I believe, for the whole succeeding year up to Aprií 1, 1886.”] ■ [20.] . . .
    [“ On the second day of April, ... a writ of possession was issued to the sheriff, the sheriff went upon the premises that day, the second day of April; Tully asserted his right to remain upon the premises for another year, and Brennan and Jacobs were claiming that he had no such right, and Jacobs was trying to get into the house and Brennan was trying to put him in. [21.] . . .
    [“Perhaps most of the time that this'trial has taken has been consumed in showing what was done in attempting to deliver possession to Jacobs, or whether- possession was actually delivered to him. Under the law, that is not very material. The contract of leasing between Jacobs and Brennan, provided that Brennan let to Jacobs the premises for one year from the first of April, 1885. By virtue of that covenant Jacobs had a right to the possession of these premises for that period — for his term. The owner of the property, the landlord, during that period had no lights there. [22.] . . .
    [“ The court instructs you that, under the lease which these parties made, it was not incumbent upon Brennan to remove anyone, Tully or anybody else, who happened to be on those premises without any right there; and if, after Jacobs was in possession, anybody who had no right there turned him out, then the consequences of that would not fall upon Brennan. But, if some one who had a right to hold these premises after the first day of April, 1885, under a contract from Brennan, was resisting Jacobs and keeping him out, or turned out Jacobs after he was in, then there was a right of action accruing to this plaintiff against this defendant, and then the plaintiff can recover. It is asserted by tbe plaintiff, Jacobs, here, and evidence has been introduced to prove it, that Thomas Tully, the man who was in before the first of April, 1855, but whose written lease expired then, had a right to the premises for the full year. The plaintiff asserts that Tully and Brennan had an agreement which was prior to the written lease of March 11, 1885, to Jacobs, by virtue of which agreement Tully had a right to hold those premises, and that, in consequence of that contract, or in pursuance of it, he did hold the premises, either refusing to go out, or, after he was turned out in whole or in part, coming back again and remaining there and holding it, keeping out or evicting Jacobs. If that is true, then the plaintiff is entitled to recover. [23]
    [“A lease may be oral, by word of mouth, just as well as by writing, providing the term is not for more than three years, and the landlord has no right to the premises during that term for which he has leased them; and if before the eleventh day of March, 1885, Brennan made a binding contract with Tully that Tully should have the property for another year from the first day of April, and that contract remained in force on the first day of April, then Tully had a right to remain there ; and, if that was so, then when Brennan attempted to give somebody else a lease for the same term, he was attempting to give what was no longer his, and, in that event, he attempted to give a lease to Jacobs when he had no right to the premises himself; and, in that event, Jacobs, having paid the rent in advance, is entitled to recover it back with interest and any damages which were the natural consequences of that breach of contract on the part of Brennan.] [24]
    [“ I think I have by this time made it clear to you that, the main question to be inquired into is, whether Thomas Tully, on the second day of April, 1885, at the time Jacobs attempted to take possession of the property, or took possession of the property, had the right to the possession of the premises in question. [25.]
    [“He had no right by reason of his written lease for three months, because that expired on the first day of April, 1885. If he had a right there at all, it must have been by reason of the contract which is set up, the oral contract between Brennan and Tully, as contained in their conversation at the stable. Is that contract proved?] [25.] ...
    “ The plaintiff asserts, and Tully testifies, that some time before the first day of April, 1885, Tully, through some other person, made a tender of four hundred dollars to Brennan, and that Brennan refused to take the money. ... [If it was made after the first day of April, then it did not avail Tully anything; then Tully Lad no rights there, no matter what the original contract was; but, if it was made before the first day of April, then the tender met the condition of the contract just as well as if Brennan had taken Tully’s money, because the willingness of Tully and the fact of his offer to pay the four hundred dollars were just as effective as if the money had been actually paid. There is testimony of other witnesses, which evidence the plaintiff has introduced, from which it is asserted that you can find that this was a bargain binding upon Tully and Brennan.] [26] . . .
    [“ On the part of the defendant, witnesses have been called from whose testimony it is claimed that you can find that Tully had no rights there after the first of April; that the contract between him and Brennan, or the proposal to lease, if you chose to-call it so, was “ off.” Ón this point Byran Denin and Patrick Brennan testify, and they say, I believe, substantially the same thing; that is, that on the fourteenth day of February, 1885, Tully told them that they should tell Brennan that Tully could not raise-the four hundred dollars, but that Brennan should take the rent in monthly installments. These witnesses testify that they told Brennan so, and that Brennan did not agree to the proposal to take the rent in monthly installments. Jonas Delong says that, on the 21th day of February, 1885, Tully said that he must leave the -house, that, he had disgraced the family; and that Tully said that Brennan should not be disgraced with him, that he would -leave the house and not make him any trouble. Do these witnesses testify to the truth? Do you believe that this .is- so ? Do you believe that Tully said so ? Do you believe that the contract was that Tully was to have until the first day of April to raise the four hundred dollars, or was he to have only till some earlier time ? [27] . . .
    [“ If, at the time that Jacobs was to have possession, somebody else had a right to the premises — to the possession of them — by contract under Brennan, then Brennan’s attempt to lease to Jacobs would amount to nothing, then Brennan was in the wrong; then Jacobs is entitled to recover back the rent he paid and such proper-damages as will compensate him for the injury naturally resulting from his breach of contract.] [28]
    [“ It may throw some light upon this question, or it may be another light in which you máy view it, if you were to suppose that this was the second day of April, 1885, and that there was a contention between Tully and Jacobs as to who was entitled for the following year to this hotel property; or you may imagine that there is a contest before us as if on the second day of April, 1885, between Brennan and Tully as to their rights — as to whether Tully had a right to the premises for another year. Gentlemen, if you were sitting on the 2d day of April, 1885, with this evidence before you, would you find that before the eleventh day of March, when this written lease was made, Brennan had bound himself by agreement with Tully to give Tully these premises? Would you so find?' Wonld you find that the possession, under this evidence, belonged to Tully? If you find that to-day, that Tully had right under Brennan to the possession of these premises after the first day of April for another year, then the plaintiff is entitled to your verdict then Jacobs was kept out by somebody who had a right there; and whether that person, to wit, Tully, refused to leave, was not actually turned out, or actually was turned out and came back again and remained in, he had a right there, and Jacobs had no right there-because Brennan had no right to lease the house the second time for the same term as the first; and, in that case, the plaintiff is entitled to recover; because, while the law declares that the tenant, under a lease like this, must take possession for himself, he is only compelled to assert his possession against a wrong-doer, against one who intrudes or trespasses upon the premises; and, when he finds the possession kept from him by some one who has a right there, no matter how he gets in, then it may be said that he took nothing by his contract, and then it must be said that the landlord attempted to give him what he no longer had.”] [29]
    The plaintiff presented, inter alia, the following points :
    “3. — If the jury believe that, by any act of the defendant, plaintiff was prevented from obtaining or holding quiet and peaceable possession and enjoyment of the premises leased by him from defendant, during the term for which he had so leased, then plaintiff is éntitled to recover in this case. Ans. — Affirmed. But the only act of defendant that can be found is the making of a prior lease to Tully for the same term. Whether there was such prior letting is referred to the jury.” [30]
    “4. — If the jury believe that, on or about February 3, 1885, defendant rented to Thomas Tully the Hudson River House for the term of one year, from April 1, 1885, and said Tully had complied with his part of said agreement, then Thomas Tully was lawfully in possession of said Hudson River House on April 2, 1885, and defendant had no right to eject him therefrom. Ans. — Affirmed. Provided the contract of lease to Tully had- not been rescinded by notice to Brennan that he (Tully) could not pay the money according to the terms on which he was to have the premises for another year.” [31]
    “ 5. — If the jury believe that the defendant had, prior to the making of the lease in this case, agreed with Thomas Tully that if he would pay him four hundred dollars before April 1, 1885, he should retain possession of the Hudson River House for one year from April 1, 1885, and Thomas Tully had fulfilled his part of said agreement, then, in making the lease in this case with plaintiff on March 11, 1885, for the occupancy of thé same premises, defendant was guilty of a fraud upon plaintiff. Ans. — Affirmed. Unless Tully rescinded the contract by notifying Brennan that he could not or would not pay the four hundred dollars rent in advance. If he (Tully) gave such notice, then he had no right there after April 1, 1885, and defendant was guilty of no wrong in making the lease with the plaintiff.” [32]
    “ 6. — If the jury believe that defendant was guilty of a fraud, whereby plaintiff was deprived of the use and occupancy of the premises rented, plaintiff is entitled to recover, not only the money paid and interest and expenses, but damages arising from the loss of the bargain, or the money he might have derived from the completion of the contract. Ans. — Affirmed. If Brennan made the second lease while a former lease was outstanding, the first tenant having done nothing to deprive himself of his right, then the leasing to the second tenant was a fraud upon the latter.” [33]
    The defendant presented the following points:
    “ 1. — If the jury believe that on the second day of April, 1885, the Sheriff of Montour County, by due process of law, evicted Thomas Tully, the occupant of the Hudson River House, and turned the possession of the same over to Brennan, the defendant, in the presence of Henry Jacobs, the plaintiff; and that James L. Brennan, the defendant, immediately and forthwith transferred the possession so given to him by the Sheriff to Henry Jacobs, the plaintiff, Brennan, the defendant, has complied with the covenants of his lease, and the plaintiff cannot recover.” Ans. — “Negatived. But the proposition is true, if on that day Tully had not a right as against Brennan to hold the premises.” [34]
    “2. — Brennan, having given Jacobs possession of the demised premises by due process of law, performed his covenants with Jacobs, and Tully’s re-entry of the said premises without invoking the aid of the courts, made him a wrong-doer; and Brennan cannot be made responsible in damages for Tully’s wrongful acts.” Ans.— “ Negatived.” [35]
    “ 3. — If Jacobs, after having been placed in possession of the premises leased him by Brennan, allowed Tully to re-enter the house and dispossess him, he has no right of recovery against Brennan, and ■cannot recover damages against him, as he was bound to defend Ms possession.” _ Ans. — “ Affirmed. Provided it is found that Tully had not, on April 2, 1885, a valid subsisting lease.” [36]
    “4. — The covenant of quiet enjoyment extends only to the acts •of the lessor, and the re-entry of tlie property by Tully was the act of a wrong-doer and Jacobs has no right of recovery against Brennan for that act.” Ans. — “This is correct, provided you find that Tully’s right as a lessee ended on the first of April, 1885.” [3Y]
    “ 5. — If Jacobs leased from Brennan with the knowledge that Tully claimed to have the right to occupy the premises demised to Jacobs from April 1, 1885, to April 1, 1886, and agreed with Brennan that he (Brennan) should have time after the first of April, 1885, to evict Tully, he is estopped from settingup Tully’s wrongful acts under his alleged claim of right, or any acts of Tully under it, in this cause, or claiming that Brennan acted in bad faith because of :said acts.” Ans. — “Negatived.” [38]
    “ 6. — Under all the evidence in this cause, if Brennan did not keep his covenants with Jacobs, the measure of damages is the rent paid with interest thereon from the time of payment.” Ans.- — ■ “Negatived.” [39]
    “ Y. — An agreement of lease is not a lease, and the declaration ■of Tully and the evidence shows oMy an agreement of lease which, if true, will give Tully an action of damages against Brennan for the breach of contract, but would give Tidly no claim to hold over under it, nor right to resist the possession of Jacobs, or to evict him ■once being in possession.” Ans. — “Negatived.” [40]
    
      “ 8. — There is no evidence of fraud on the part of Brennan in his lease of the Hudson River House to Henry Jacobs, the plaintiff, inasmuch as the judgment of the Court of Common Fleas of Montour county, at the suit of James L. Brennan against Thomas Tully, being a judgment in .ejectment, is conclusive as to any title or right Tully may claim in the Hudson River House prior to the 2d day of April, 1885. And possession having been given by Brennan to Jacobs of the said Hudson River House on April 2, 1885, the verdict must be for the defendant.” Ans. — “Negatived.” [41].
    Yerdict and judgment for plaintiff for $400 rent paid in advance ; $51.80 interest from April 1; $50 moving expenses; and $150 damages; total, $651.80.
    . The assignments of error specified, 1-19, the rulings on the evidence, quoting them ; 20-29, the portions of the charge included within brackets, quoting them ; and, 30-41, the answers to plaintiff’s and defendant’s points, quoting them.
    
      W. J. Baldy and Scarlet & Angel, for plaintiff in error.-
    The delivery of possession, though shown in this case, could not have been required of the defendant, as there was no express contact to that effect contained in the lease. Cozzens v. Stevenson, 5 S. & R. 421.
    Evidence of an eviction was inadmissible under the pleadings in this case. Taylor’s. L. &. T., pl. 674, pp. 487, 488, 2d ed.; Woodfall’s Landlord & Tenant, pp. 571, 674; Naglee v. Ingersoll, 7 Pa. 206; Webb v. Alexander, 7 Wend. 281; Pumeroy v. Bruce,. 13 S. & R. 186.
    The lessor would be liable for damages for loss of bargain only in case of fraud or collusion. Lanigan v. Kille, 97 Pa. 120.
    The court overlooked the difference between a lease and an agreement to lease: the payment of the year’s rent in advance by Tully was a condition precedent and must happen before either party was bound. Jackson & Gross, L. & T., p. 20, pl. 23; Clark v. Russel, 3 Watts, 217; Bouv. Inst., pl. 742; Chitty on Contracts, 637-8; Weaver v. Wood, 9 Pa. 220; Seipel v. Insurance Co., 84 Pa. 47.
    The construction of this contract was for the court and not for the jury. Waits’ Act. & Def., 115.
    Where a future contract is in contemplation by the parties, there can be no binding contract. Orr’s Ap., 67 Pa. 201.
    Such an equitable right must be shown that the court could decree a conveyance, upon -a petition for specific performance. Debozear v. Butler, 2 Gr. 417; Brown v. Gray, 5 Watts, 17; Christy v. O’Brien, 14 Pa. 249; Moore v. Small, 19 Pa. 467; Hart v. Carrol, 85 Pa. 510; Edwards v. Morgan, 100 Pa. 330.
    The entry of the judgment in ejectment against Tully was conclusive until reversed. Hageman v. Salisberry, 74 Pa. 280; Secrist v. Zimmerman, 55 Pa. 446.
    A former judgment between the same parties cannot be collaterally attacked. Bower v. Tallman, 5 W. & S. 556; Cyphert v. McClune, 22 Pa. 195.
    While the judgment stood, Tully could not enter except as a trespasser, and the landlord cannot be made answerable- for the acts of a trespasser. Jackson & Gross, L. & T., pi. 1008.
    After the plaintiff had been put in possession, good faith toward his covenantor required that he should determine Tully’s rights by a contest and not voluntarily surrender the premises. Taylor’s Land. & Ten., 232, par. 308.
    The defendant was certainly entitled to read in evidence the notes of the court stenographer, under the Act of May 23, 1887, § 9, which provides that notes of testimony are admissible, if the witness cannot be effectively served with a subpoena, or if he cannot be found.
    
      Edward S. Gearhart, H. M. Hinckley and C. R. Savidge, for defendant in error.
    Every lease contains an implied covenant of quiet enjoyment. Hazlett v. Powell, 30 Pa. 295; Maule v. Ashmead, 20 Pa. 484; Ross v. Dysart, 33 Pa. 453; Moore v. Weber, 71 Pa. 431; Barns v. Wilson, 19 W. N. C. 468. Every lessee is entitled to be put into quiet, peaceable and undisturbed possession of the premises leased, by the lessor. If the lessee is kept out of possession by one having a superior title to that of the lessor, the covenant is broken, and the lessee need not bring ejectment but can at once sue the landlord for damages. Trull v. Granger, 8 N. Y. 115; 2 Sharswood L. Cases, p. 61; 2 Platt on Leases, p. 288; Taylor’s L. & T., § 177; Jackson & Gross, L. & T., § 935.
    The case of Cozzens v. Stevenson, 5 S. & R. 421, cited to the contrary by the plaintiff' in error, does not sustain his position.
    This action is not brought for an eviction, but for not putting us in possession. The possession which the landlord gave us was a trespass upon Tully, and not such a possession as he covenanted to give us. This is good ground for an action of covenant. Hawkes v. Orton, 5 A. & E. 375; Gardner v. Keteltas, 3 Hill, 332; Coe v. Clay, 5 Bing. 440.
    The possession given by the sheriff was not such quiet, peaceable possession as the plaintiff was entitled to. The process of habere facias is not understood to be executed, until the sheriff and officers are gone and the plaintiff left in quiet possession. 2 Tidd’s Pr., 6th ed., 1090-92; Kingsdale v. Mann, 6 Modern, 27; Freeman on Executions, § 474; Herman on Executions, 532-3; Newall v. Wigam, 3 Cent. R. 324.
    The breach was properly assigned by negativing the words of the covenant. Abbott v. Allen, 14 Johns. 252.
    Where a landlord agrees with his tenant that the tenancy may be continued upon paying a certain amount in advance, and the tenant agrees to pay that amount, it is a valid lease and not a mere agreement to lease. Barry v. Nugent, 3 Dougl. 179, cited in 5 T. R. 165 ; Platt on Leases, p. 600; Wright v. Trezevant, 1 Mood & Malk. 231.
    
      The landlord was guilty of a fraud, and the measure of damages, besides the rent paid with interest, is the loss of the bargain. Lanigan v. Kille, 97 Pa. 126; Bitner v. Brough, 11 Pa. 139; Hoy v. Gronoble, 34 Pa. 10; Garsed v. Turner, 71 Pa. 58.
    In regard to the admission of the notes of the stenographer, there was no proof offered that the witness could not be found. There was nothing but the statement of counsel, and no evidence of an effort to find the witness.
    Oct. 1, 1888.
   Sterrett, J.,

There is nothing in either of the forty-one specifications of error that requires a reversal of the judgment.

The right of plaintiff below to recover depended on questions of fact which were properly submitted to the jury and by them determined in his favor,. He alleged, and undertook to prove, among other things, that, on March 11th, 1885, in consideration of $400 rent then paid in advance, Brennan executed and delivered to him a lease of the premises therein described, for one year from April 1st then next ensuing: that, before said lease was executed, Brennan had, verbally, leased the same premises for same term to Thomas Tully who was then in possession, under a written lease from Brennan, for three months, commencing January 1st, 1885: that, by virtue of said verbal lease, Tully claimed and rightfully held possession of the demised premises after the expiration of his written lease, and plaintiff below was thus unable to obtain or hold quiet or peaceable possession of the same, according to the terms of his lease, and thereby sustained the damages for which this suit was brought. These and other collateral questions of fact, arising out of the evidence, were fairly submitted to the jury, with full and substantially correct instructions, some of which are complained of in the 22d to 33d specifications inclusive. Referring to the verbal lease to Tully, the learned Judge, in that portion of his charge recited in the 25th specification, rightly said: “ The main question to be inquired into is whether Tully, on the 2d of April, 1885, at the time Jacobs attempted to take, or took, possession of the property, had a right to the possession of the premises. He had no right by reason of his written lease for three months, because that expired on the 1st day of April, 1885. If he had a right there at all, it must have been by reason of the contract which is set up, the oral contract between Brennan and himself, as contained in their conversation at the stable. Is that contract proved ?” etc. That, and other questions of fact, bearing on the case, having been fairly submitted to the jury, were impliedly answered in favor of plaintiff below. Such is the necessary legal inference from the verdict, considered in connection with the clear and explicit instructions of the learned Judge who presided at the trial. It cannot be presumed that the jury, in arriving at their verdict, disregarded any of those instructions. On the contrary, the presumption is that they found all the facts of which their verdict is predicated.

The admission of evidence for plaintiff, and rejection of testimony offered by defendant below, are the subjects of complaint in a large proportion of the specifications. "Without noticing either of them specially, it is sufficient to say there is no substantial error in any of the rulings of the court on either subject. The evidence admitted was both competent and relevant under the pleadings, and the testimony that was excluded was either irrelevant or incompetent.

The lease sued on contains an implied covenant for quiet,, peaceable and undisturbed possession of the demised premises, as against the lessor himself, and those claiming under him by paramount title. If the lessee is kept out of possession by one having superior title to that of the lessor himself, or if the latter, either before or after executing a lease, does any positive act by which the lessee is kept out of possession, the covenant is broken. Thus in Trull v. Granger, 8 N. Y. 115, where a lease was executed by which possession was to be given at a time certain and the landlord subsequently leased the premises for five years to a third person, who, on the arrival of the time at which the first lease was to commence, refused to give up the premises, and the landlord refused to give possession thereof, it was held that the lessee need not bring ejectment, but could at once sue the landlord for damages. 2 Sharswood’s Leading Cases, etc., 58, 61. As is said in 2d Platt on Leases, 288, the object of such covenants is to protect the lessee against defective title; and they necessarily import that the lessee shall enter and enjoy the premises without the permission of any one. If, therefore, a party make a lease, to commence in praesenti, of premises which belong to another, that other being either a stranger or a person holding under a subsisting demise by the same lessor, an action of covenant lies at once for the lessee.

In this case, the controlling fact, established by the verdict, is that, when Brennan executed the lease in suit and received from Jacobs a year’s rent in advance, he had already, by verbal contract, leased the same premises for same term to Tully, who was then in possession of the premises, and, by virtue of that contract, had a right to hold them as against both Jacobs and .Brennan. There is nothing to show that the verbal lease to Tully was annulled or surrendered.

On the facts established by the verdict, plaintiff had a clear case for recovery of the rent he had paid in advance, and such additional damages as was shown by the evidence. Substantial justice has-been done and the judgment should not be disturbed.

Judgment affirmed. H. J. L.  