
    Jonah D. Hoover and Wife v. the United States.
    
      On the 'Proofs.
    
    
      The claimants lease their house to the defendants at $160 a month, to he restored in like good order. The defendants proffer to restore the house, hut the claimants insist on certain repairs. The defendants make the repairs to restore the former condition of the house, hut refuse to pay rent while thus occupying it. The provost marshal of the District of Columbia, through the agency of Colonel O’Beirne, next rents the house at $2,500 a year. Che Quartermaster General being ignorant of this lea'se takes possession and assigns it to the Freedmen’s Bureau. He pays the old rent of $160 a month,' but refuses to recognize the new lease to the provost marshal. The claimants for a long time are ignorant of this determination, and suppose that the defendants went into possession under their lease to the provost marshal. The legal title to the house is in a trustee of the wife. He, by parol, authorizes the claimants to lease and receive the rents to their benefit.
    
    I. Where the defendants as tenants agree to restore the premises in good order, they are liable for the rent while making repairs necessary to make good the condition of the house.
    II. Where the defendants by one agent rent premises, but another being ignorant of the lease takes possession and occupies the premises, the defendants must be held to have gone into possession under the lease executed by the former agent, and not under an implied contract arising from their occupancy through the latter agent.
    III. Where a trustee holding the legal title to real property authorizes by parol the parties in interest to lease the premises and receive the rents to their benefit, and they lease accordingly in their own names, an action for the rent will lie if brought in their own names instead of by the trustee.
    Mr. T. J. D. Fuller for the claimants':
    In June, 1861, the premises in question were leased to the United States for military purposes, for an indefinite period, at the rent of $160 per month, and the premises to be returned in like good condition as when leased, ordinary wear excepted.
    In 1865, February 13, notice was given the claimants that the United States no longer required the premises, and the rent was paid up to that day. The claimants declined to accept the premises in the condition they were in as being untenantable, and the United States admitted the fact, and proceeded to put them in a state of repair at the cost of $1,554. But the repairs were not completed till the 28th of March, 1868. The claimants could not occupy the premises without the repairs, nor could they occupy while the repairs were being made.
    The claimants demand rent from the 13th of February to the 28th of March, at the rate of $160 per month, which is the first item of claim.
    About the 1st of April, 1865, a new contract of letting was entered into with the United States for the same premises, at the rent of $2,500 per year, through the agency of Colonel O’Beirne, and the premises were so occupied for 18 months, for which period the United States have paid rent at the rate of $160 per month, and no more. The claimants demand $48 33 per month additional for 18 months, being $869 94. That subsequently the United States paid and are now paying rent for the premises at the rate of $2,500 per year.
    I. In action of covenant for non-repairs, the measure of damages is the cost of the repairs and the use or rent of the premises while undergoing repairs. Archibald’s Landlord and Tenant, 177, 174; Wood vs. Pope, 1 Bing. N. C., 467; English C. L., vols. 12, 27, 38, and 42.
    Upon the principles of these cases, if the United States had wholly neglected and refused to repair the premises upon an action for not surrendering in good repair, the measure of damages would be the cost of the repairs and intervening rent for a reasonable time to place the premises in repair.
    But as the United States have admitted the contract of letting to be as alleged, by making the repairs itself, it leaves due the claimants the rent only. Without the repairs, claimant would recover repairs and rent; as repairs have been made, .his claim is for the rent only.
    II. The second item of claim, the difference in rent asked and rent paid, is a question of fact purely.
    What was the contract 1
    In the first place, the first contract was fully complete and ended.
    The house had not been given up, it seems, on the next day, when General Augur requested General Rucker to hold on until he could see him. It was given up February 13, 1865.
    The letters show the first contract to be ended, and that the lease had expired and the possession surrendered. This was the condition of the case when the new contract was made with Colonel O’Beirne on the 24th day of March, 1865.
    III. Here was no holding over under the first contract.
    
      That was fully ended; time and repairs intervened between the old and new contracts.
    That a new contract was made and possession taken under it.
    It was a reasonable contract, as the government,.by General Howard, entered into a new contract, paying the same price.
    The Assistant Solicitok for defendants.
   Loring, J.,

delivered the opinion of the court:

The petitioners claim of the United States rent for the house at the corner of I and 19 th street, Washington, and the court finds the facts to be—

In June, 1861, the petitioners leased the house to the United States for such time as they should require it at $160 per month, to be returned in like good order and condition, ordinary wear and tear excepted.

The United States occupied and paid the rent for the house till February 13, 1865, and then proffered to return it to the petitioners, who-declined to receive it because it was not in tenantable order, and they required that the United States should repair it. This the United States did, and the repairs were completed on the 28th of March, 1865.

The petitioners demanded of the United States rent for the house at the rate of $160 per month from the 13th of February to the 28th of March, while the house was undergoing repairs, and this the United States refused to pay.

While the house was under repairs, and on the 27th of March, 1865, by another contract in writing between the petitioners and the United States, the house was leased to tho United States from the 1st of April, 1865, at the rate of $2,500 per year, and was under said contract held and occupied 18 months by the United States.

On the 7th July, 1865, while the house was in the possession of the United States and occupied by them, it was ordered by the Quartermaster General that the house be taken up for the United States and rent paid for it at the rate of $160 per month while occupied by the government.

On or about the 6th of October, 1866, the United States paid the petitioners rent for the occupation of the house from 1st April, 1865, to 1st of October, 1866, at the rate of $160 per month.

A.nd the petitioners then demanded of the United States the additional rent at the rate of $2,500 per year, amounting to $870, and this the government refused to pay.

The legal title of the premises during the contracts above stated was in Mr. Phillips, trustee for Mrs. Hoover, under the will of her father; and the petitioners were authorized by the trustee to lease the premises and receive the rents for their benefit.

And $2,500 per year was a reasonable rate of rent for the premises from the 18th of April, 1865, to the 1st of October, 1866.

As to the rent claimed for the time the house was undergoing repairs, the premises were withheld from the petitioners and 'held by the United States as a consequence of their breach of their engagement to return them in tenantable condition, and the loss incident to that must be borne by the United States, and not by the petitioners.

As to the rent claimed as due from the 1st of April, 1865, to the 1st of October, 1866, the time of the occupancy is found by the payment of $160 per month for that time. And as to the rate of rent the contract for $2,500 per annum is expressed in writing. And the Quartermaster General had no right or authority to abrogate that contract by taking up the premises as private property taken for public use, for there is no evidence of the necessity that can alone justify that exercise of power.

Whoever claims or depends on the agency of a public officer must prove the agency, and where that is conditional, must prove the circumstances on which it is conditioned, and this can always be done at the trial, for the officer can be called to show the circumstances and reasons on which he acted. An officer’may take private property for public use when the circumstances make it a necessity for the public good, but the necessity must be shown, for, to assume it on the officer’s action and dispense with its proof, would be tantamount to dispensing with its existence and subject the United States in all cases. The rule for such cases is given in Mitchell v. Harmony, 13, How., 134, 1851, by the Supreme Court as follows: “It is the emergency that give's the right, and the emergency must be shown to exist before the taking can be justified. In deciding upon this necessity, however, the state of the facts as they appeared to the officer at the time he acted must govern the decision; for he must necessarily act upon the information of others as well as his own observation. * * * But it is not sufficient to show that he exercised an honest judgment and took the property to promote the public good. He must show by proof the nature and character of the emergency, such as he had reasonable grounds to believe it to be, and it is then for the jury to say whether it was so pressing as not to admit of delay, and the occasion such, according to the information on which he acted, that pri-yate rights must for the time give way to the common and public good.” That the action of the Quartermaster General had for its purpose the public good and that only, is unquestionable, but there is nothing in the evidence that brings his action within the rales laid down by the Supreme Court.

As to the legal title of the premises being in Mr. Phillips, trustee, this action is not on the title, but on the contracts above set forth. These the petitioners were authorized to make by the trustee, and if they could make the contracts they may sue upon them, and as lessees the United States cannot question the title of their lessors.

On the facts stated the court finds that the petitioners are entitled to recover from the United States—

1st. Rent from the 13th of February to 28th of March, inclusive, $226 18.

2d, For balance of rent unpaid from 1st of April, 1865, to 1st of October, 1866, at the rate of $2,500 per year, less the amount paid, $870 ; making in all $1,095 18; for which judgment is to be entered for the petitioners.

Nott, J.,

dissented, on the ground that inasmuch as the claimants had themselves shown affirmatively that they .had no . legal rights to the rents, and only leased the premises as agents of the legal owner, the action ought to have been brought in the name of the trustee.  