
    CHRISTINO S. FONDAVILA, Appellant, v. CHRISTIAN JOURGENSEN, Respondent.
    
      Direction of verdict, evidence justifying.—Landlord and tenant—not yielding possession—measure of damages for—Parol agreement to put in order, alleged to have been made at time of execution of lease, but not embodied therein, no recovery on. •
    Plaintiff (the tenant), sued defendant (the landlord), in action for damages for not delivering possession, and for breach of an agreement to put the premises in good order, alleged to have been made at the time of the execution of the written lease, but not embodied therein. The defense was a settlement of the claim. Defendant testified that negotiations were had as to the matters in difference; and that the terms of sefc- ■ tlement were agreed on. On the day after, plaintiff sent defendant a receipt which had been prepared for him by a friend, for a certain sum of money in full for the rent for a certain period; the sum mentioned in the receipt was less than that reserved by the lease, and was the amount found by a calculation made on the basis of the terms of settlement testified to by defendant. The defendant added to the receipt the words,
    
      “ In settlement of difference, the above amount is received,” signed it and sent it to plaintiff. It did not appear that there was any difference between the parties, other than those thus existing, and which were the subject of the action. Payment was made according to the receipt. Plaintiff did not deny that negotiations were had, nor did he deny that an agreement for an allowance to him had been carried out, so far as it could then be done. Plaintiff denied that he knew of the addition to the receipt when he took it back, and in substance testified in general terms that he did not agree to settle his claim for damages. There was no evidence of the difference between the value of the premises, and the rent.
    Held, a direction of a verdict for defendant on the ground that the cause of action had been settled before suit brought was correct.
    
      Held further, there being no evidence of any difference between the value of the premises and the rent, no damages issuing out of a breach of the implied agreement to yield possession had been shown.
    
      Held further, that the written lease was the only competent evidence of an agreement to put in order, and as the lease contained no such agreement, no damages could be recovered on such an alleged agreement.
    Before Sedgwick, Oh. J., and Freedman, J.
    
      Decided December 7, 1885.
    The defendant, by an instrument in writing, leased certain premises to the plaintiff, at a yearly rent of $2,500, payable monthly in advance, for a term of three years from May 1, 1884. Plaintiff sublet the upper part, at the monthly rent of $91.66, to one Boera, who entered thereon May 1, 1884. Plaintiff paid the May rent in advance ; he did not pay the June or July rent, claiming that he should have an allowance for not being put in possession of the lower part, and for a breach of agreement alleged to have been made at the execution of the lease (but not introduced therein), to put the premises in good order, painted and ready for occupation as a first-class restaurant. Negotiations were entered into, which resulted in a settlement, as defendant testified, on the following basis :— Defendant was for the month of June to allow the plaintiff the difference between the rent for that month, and the rent received by him from Boera for that month, and for the month of July one-half of such difference, and at the end of the terra to allow for the previous May rent the difference between the two rents for that month, and to put in a new closet. On the next day, the receipt referred to in the opinion was given, and payment made according to its terms—the sum mentioned in the receipt being plaintiff’s full rent for June and July, after making the above allowances for those months. Plaintiff did not deny that there were negotiations for a settlement of the difference, nor did he deny that an agreement for allowances to him was made, and that such agreement had been carried out; but near the close of his testimony he in substance testified in general terms that he did not agree to settle this claim for damages. It did not appear that there were any differences between the parties other than those thus existing, and which were the subject of the action. Other facts appear in the opinion.
    The court directed a verdict for the defendant, from the judgment entered on which plaintiff appealed.
    
      Lorenzo TJllo, for appellant.
    
      Josiáli T. Marean, for respondent. •
   By the Court.—Sedgwick, Ch. J.

On April 2, 1884, the plaintiff and defendant entered into written lease, by which the defendant let, and the plaintiff hired a store at the yearly rent of $2,500, payable monthly in advance, for three years beginning May 1, 1884. The plaintiff went into possession of the upper floor of the premises on May 1, but claimed that the defendant did not deliver possession to him of the lower part of the premises until July 15.

On the argument of the appeal, the learned counsel for appellant took the position that the action was brought to recover damages sustained by the plaintiff by reason of the failure of the defendant to deliver possession before July 15.

One of the defenses to this claim was that by mutual compromise this claim had been settled and discharged, by the defendant deducting from rent due and unpaid a certain amount which the plaintiff agreed should be in satisfaction of the claim he made in this action.

On the trial, the judge held that the evidence showed that such a settlement had been made, and directed a verdict for the defendant. The plaintiff asked to go to the jury on the question whether or not the agreement between the parties comprehended the claim made in this action, and did not ask that any other question be sent to the jury.

The most important piece of evidence to show that the claim had been settled was a receipt given by defendant, as follows : “Received this July 17, 1884, from Ohristino S. Fondevila the sum of $241.66, being in full balance of rent of premises at 100 Maiden Lane, leased by me to him, for months of June and July, 1884. In settlement of difference, the above amount is received. 0. Jourgensen.” The plaintiff denied that at the time he took back the receipt after it was signed, he knew that the last sentence had been added to it, by the defendant. The proof showed that the defendant did add it. But the rest of the receipt was understood by the plaintiff. It had been prepared for him by a friend, and he, the plaintiff, had handed it to the defendant for signature. The intrinsic nature of the transaction, as described by the receipt, in light of other facts proven by undoubted testimony, shows that the settlement was made. The only reason the plaintiff had for urging a deduction from the rent was that he had not been put in possession of all the premises. If he had not made such, a claim, the whole rent would have been undoubtedly due. His right would have been to recover his damages, and his obligation to pay the rent (Knox v. Hexter, 71 N. Y. 461). The receipt as prepared and retained by him showed that he had accepted an acquittance for part of the rent, and the only consideration for this, that the circumstances permit, was his acquittance of the defendant from the damages claimed in this action. The ruling below should be sustained.

In fact, however, it appears in the testimony that the plaintiff did not show himself entitled to any damages in his avowed cause of action. The measure of damages upon an implied agreement of a lessor to yield to the lessee possession of the premises, is the difference between the yearly value of the premises and the rent (Trull v. Granger, 8 N. Y. 115). No such difference was attempted to be proved.

There was involved in the transaction between the parties, a promise, testified to by plaintiff and denied by the defendant, that the latter would before the commencement ' of the term put the premises in good order, &c. The complaint avers that this promise was made when the parties made the written agreement. This agreement does not show any such promise, and the promise, if made, must have been verbal. The only competent evidence of the agreement of the parties, was the written instrument (Cleeves v. Willoughby, 7 Hill, 83).

Judgment affirmed, with costs.

Freedman, J., concurred.  