
    Strangward v. The American Brass Bedstead Company.
    
      Motion by each party in jury case — After impaneling jury, before evidence is offered — To direct verdict on pleadings — Is waiver of jury trial and submission of case to court — Judgment conclusive, when — Lease for two years, rent payable per year — Is lease for fixed term and not a monthly renting.
    
    1. A motion by each party in a jury case after the impaneling of the jury in the court of common pleas, to direct a verdict in his favor on the pleadings, made to the court before evidence is offered, is a waiver of a jury trial and a submission of the case to the court, and a party cannot, as of right, after his motion has been overruled, and that of the other party sustained, give evidence in support of his case.
    2. When a matter has been finally determined in an action between the same parties by a competent tribunal, the judgment is conclusive, not only as to what was determined, but also as to every other question which might properly have been litigated in the case.
    3. A lease which provides for a term of two years, the rent to be a stated sum per year during the continuance of the lease, is a leasing for a fixed term and is not a renting from month to month although the rent is to be paid in specific instalments on the first day of each month in advance. (Grant v. Ramsey, 7 Ohio St., 1S8, approved and followed.)
    4. A recovery for a monthly instalment of rent, that being all that was due at the time action was commenced, is not a bar to recovery for instalments subsequently coming due upon the lease.
    (No. 11624
    Decided April 12, 1910.)
    Error to the Circuit Court of Cuyahoga county.
    Action was commenced in the common pleas of Cuyahoga, October 5, 1906, by plaintiff in error, William Strangward, against The American Brass Bedstead Company, defendant in error, to recover rent for the months of May, June, July, August and September, 1906, less a credit of $59.83, upon a written lease covering certain premises in the city of Cleveland. The lease was executed November 1, 1904, and was for the term of two years and to terminate October 31, 1906. Rent was to be $960 per year in instalments of $80 payable on the first day of each month in advance from the commencement of the term. The amount claimed was $400 less the credit before stated which was for rent received from a portion of the premises from August 10, 1906, to October 6, 1906.
    The answer pleaded as a defense the recovery May 4, 1906, of a judgment before .a justice of the peace, and afterwards in the common pleas on appeal, for $169, which was for rent on lease, and that the amount of the rent asked for in the present case could have been demanded in said action in said justice's court and in said appeal as and in violation of the terms of the lease. Further, the answer alleged that six months prior to April 1, 1906, plaintiff did not furnish sufficient power in the building according to the terms of the lease for defendant to carry on the business of manufacturer which by the lease plaintiff was bound to do; that defendant notified plaintiff of the same and plaintiff then promised to remedy the defect but failed to do so; that in March, 1906, upon being requested to furnish power according to the lease, plaintiff ordered defendant to vacate the premises, which, on April 1, 1906, defendant did and has not been in possession since.
    Plaintiff's reply denied that he did not furnish sufficient power according to the terms of the lease, and denied that he at any time ordered defendant to vacate the premises. It admitted the recovery of the judgment before the justice May 4, 1906, and afterwards in the common pleas on appeal, but averred that the judgment was for rent for the month of April, 1906; it averred further that the amount of rent asked in the petition in this case had not at that time accrued and could not at that time have been demanded. It further averred that all matters and things in connection with the failure of plaintiff to live up to the terms of the lease were in issue in that cause, and that by reason of the premises defendant is now estopped from setting up said defense because the same has already been adjudicated.
    Upon these pleadings the parties' went to trial to a jury. After reading the petition, answer and reply to court and jury, the plaintiff moved the court to instruct the jury to bring in a verdict for the plaintiff on the pleadings and the facts admitted therein. Thereupon the defendant also moved the court to direct the jury to bring in a verdict for the defendant upon the pleadings and facts stated therein. The court then, upon due consideration, granted the motion of the plaintiff and overruled that of defendant. The jury returned a verdict accordingly. Motion for new trial by defendant was overruled and judgment entered on the verdict, to all which defendant excepted. The circuit court reversed this judgment for error in granting plaintiff’s motion for judgment and overruling that of defendant, and the plaintiff now asks a reversal of the latter judgment.
    
      
      Messrs. Smith, Taft & Arter, for plaintiff .in error, cited and commented upon 'the following authorities:
    
      Petersine v. Thomas, 28 Ohio St., 596; Bridge Co. v. Sargent, 27 Ohio St., 233; Mengert, Trustee, v. Brinkerhoff, 67 Ohio St., 472; Hixon v. Ogg, 53 Ohio St., 361; Railroad Co. v. Smith, 54 Ohio St., 596; Babcock & Co. v. Camp, 12 Ohio St., 11; 1 Freeman on Judgments, Sections 330, 331; Mead v. Darling, 159 Fed. Rep., 684; James v. Allen County, 44 Ohio St., 226; Fox v. Althorp, 40 Ohio St., 322; Grant v. Ramsey, 7 Ohio St., 158; 2 Ency. PI. & Prac. (1905 ed.), 1026, 1027; 4 Cyc., 328; Marshall v. Clothing Co., 184 Ill., 421; McDole v. McDole, 106 Ill., 452; Holthausen v. Kells, 18 N. Y. App., 80; Stiles v. Himmelwright, 16 Pa. Sup. Ct., 649; La Farge v. Mansfield, 31 Barb., 345.
    
      Mr. A. E. Bernsteen and Mr. William H. Miller, for defendant in error, cited and commented upon the following authorities:
    
      James v. Allen County, 44 Ohio St., 226; Glass Co. v. Stoehr, 54 Ohio St., 157; Steinau v. Gas Co., 48 Ohio St., 324; Stephenson v. Repp, 47 Ohio St., 551; Cockley v. Brucker, 54 Ohio St., 214; Stein v. Steamboat, 17 Ohio St., 471; Erwin v. Lynn, 16 Ohio St., 539; Ewing v. McNairy & Clafflin, 20 Ohio St., 315; 1 Ency. PI. & Pcac., 154, 155; Burckhardt v. Green, 26 C. C., 315, 68 Ohio St., 711; 12 Ency. PI. & Prac., 848; Jones on Landlord & Tenant (1905), section 652; Boston 
      v. Binney, 11 Pick., 1; Warren v. Ferdinand, 9 Allen, 357; Burnham v. Roberts, 103 Mass., 379.
   Spear, J.

Upon the making in the court of common pleas of the motion by each party for judgment on the pleadings this kind of a case was presented to that court: By the written lease, admitted by defendant to have been duly executed as pleaded, the defendant was liable for the rent claimed to be due unless the new matter pleaded in the answer and not controverted by the reply, established a valid defense. That new matter consisted of five specific allegations, viz.: 1. The recovery of the judgment of May 4, 1906, before the justice of the peace for rent on the lease; 2. That the amount of the rent asked for in the petition could have been demanded in that suit; 3. That six months prior to April 1, 1906, plaintiff violated his contract by not furnishing sufficient power as agreed in the lease, and that the plaintiff agreed to remedy the defect but failed to do so; 4. That in March, 1906, plaintiff ordered defendant to vacate the premises; 5. That defendant left the premises April 1, 1906, and has not since been in possession. The second, third and fourth allegations are distinctly denied by the reply. As' to the second it may be further remarked that it much resembles a conclusion of law, but if treated otherwise the record aids the contention of plaintiff, for it seems unreasonable to conclude that the' mere fact that rent accruing prior to the commencement of the suit before the justice was the subject of action in that case could make ineffective a suit brought afterward for rent subsequently becoming due. If this be so then rent subsequently becoming due could not have been demanded in that suit. There is nothing in the record showing conclusively the exact date of the commencement of the suit before the justice. It is not, however, to be presumed, in aid of a technical defense,' that it was commenced on or after the first day of May. The fact that it was tried on the fourth of May raises no presumption that it was not commenced in April, and if any inference is to be indulged it would be that the party would have naturally demanded all that appeared then to be due. The effect in law of this situation is easily determined by recurrence to the lease itself. That instrument does not purport to be a lease from month to month, but is “for the term of two years commencing on the first day of November, 1904,” and the rent is to be $960 per year. But the rent is to be paid “in instalments of $80 each, payable on the first day of each month in advance,” the lessee being thus obligated to pay rent for two years but in monthly instalments. It would follow necessarily from this that suit might be prosecuted at once for any one month’s rent if default were made in payment, and that, too, without in the absence of any new factor, involving any question of rent subsequently becoming due under the lease. It would seem that this proposition is so plain as to require no argument in its support. So that defendant’s affirmative defense rested finally upon the remaining- allegations, viz.: that the defendant left the premises April 1, 1906, and was not afterward in possession. As to this averment of the vacation of the premises by the defendant it is enough to' say that, as appears by the pleadings, they were abandoned by the defendant without fault of the plaintiff, and it cannot be the law that a lessee, obligated by a written lease to pay rent for two years, can escape liability by simply abandoning the premises rented. The reply makes the further point that all matters and things in connection with the failure of plaintiff to live up to the terms of the lease were in issue in the suit commenced before the justice, and have thus been adjudicated. If they were not, clearly they might have been, inasmuch as that ground of defense existed, if it ever did exist, at the time of the commencement of the suit before the justice. This being the case presented to the trial judge it is difficult to see that he could have properly done other than what he did do. The case turned wholly on the pleadings and we think they were clearly sufficient to justify a verdict and judgment.

As it appears to us the rules of law applicable to the case are simple. And the real issue would seem to be entirely covered by the case of Grant v. Ramsey, 7 Ohio St., 158. That action was for rent due upon a lease made in parol but for less than three years. The rent was to be six dollars per month payable monthly. A previous suit for rent coming due earlier had been tried and determined in -favor of the plaintiff. The tenant had vacated the premises upon the ground that his term had expired, but urged as- an additional ground that the landlord had refused to fulfill his contract to put the lease in writing. The syllabus of the case follows: “(1) Where a question of fact has once been tried and adjudicated by a court of competent jurisdiction, it cannot be re-opened in a subsequent suit between the same parties. They are concluded by the former judgment. (2) A parol lease of lands for more than one year, but less than three, will, by the taking possession under it, and the payment of rent according to its terms, be withdrawn wholly from the operation of the statute of frauds. (3) In such a case the tenant cannot, by a voluntary abandonment of the premises during the term, terminate his further liability to pay rent, although the landlord may have neglected to execute a written lease according to the agreement of the parties, unless the abandonment appears to have been on account of such neglect.”

We have not overlooked the clause in the lease to the effect that if the rent shall be in arrears and unpaid the lessor may avoid the lease and enter into possession and sue for and recover all rent due at the time of such entry. But the clause is ineffective to aid the defendant there being no averment in the answer as to such re-entry, and .the record not otherwise showing when it took place. We are therefore not called upon to give construction to this clause.

Nor have we overlooked the fact that the bill of exceptions shows that the defendant offered to introduce evidence. The offer came too late, the cause having already been submitted to- the court, and the court having rendered its judgment on the motions. To allow or refuse the application was within the discretion of the court, and no statement having been made to the .court of what the defendant expected to prove, it cannot be claimed that there was an abuse of discretion. Bank v. Hayes, 64 Ohio St., 100; Thompson v. Simpson, 128 N. Y., 270.

We are of opinion that there is no error in the record of the common pleas. The judgment of the circuit court will be reversed and the judgment of the common pleas affirmed.

Reversed.

Summers, C. J., Crew, Davis, Shaucic and 'Price, JJ., concur.  