Dermott v. Wallach,
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68 U.S. 61 (1863)
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U.S. Supreme Court
Dermott v. Wallach, 68 U.S. 1 Wall. 61 61 (1863)
Dermott v. Wallach
68 U.S. (1 Wall.) 61
Where a lease at $3,000 a year, payable in monthly installments, stipulated that if the tenant underlet or attempted to remove any of the goods on the premises without the landlord's consent, then, at the sole option and election of the landlord, the term should cease, AND MOREOVER, in either of said cases, "one whole year's rent, to-wit, the rent of $3,000 over and above all such rents" as have already accrued, shall be and is hereby reserved and shall immediately accrue and become due and owing, and shall and may be levied on by distress and sale of all such goods as may be found on the premises,
Held, in a case where a removal and consequent levy had been made while the lease had yet more than a year to run, that although the clause in the lease was obscure, the $3,000 was "rent," intended to be secured in advance and in a gross sum instead of in the monthly shape, and was not a penalty above and independent of the other and usual rents.
Mrs. Dermott leased to Dexter a hotel for three years from 1st October, 1855, to be extended to five, at the option of the tenant. The rent was $3,000 a year, payable in monthly sums of $250. It was expressly stipulated between the parties and made a condition that if the tenant should assign or underlet the premises without the written consent of the landlord or should remove or attempt to remove any of his goods or chattels (except the same be replaced of equal value) from the premises without a like consent, then and in either case and event, at the "sole option and election" of the landlord, the term should cease and the landlord might immediately reenter upon the premises and expel the tenant, AND MOREOVER, in either of said cases, or the happening of the events,
"one whole year's rent, to-wit, the rent of $3,000 over and above all such rents (that is to say, all such of the rents hereinbefore reserved to be paid on the first day of each month during the said term . . . as shall have then already accrued) shall be and by these presents is reserved to be paid by the said Dexter to the said Dermott, and shall immediately thereupon accrue and become due and owing from him to her, and shall and may be levied by distress and sale of all such goods and chattels as may be found on the premises."
Dexter the tenant took possession, and afterwards executed
two deeds of trust of the goods and chattels in the hotel to the defendant, Wallach, to secure certain promissory notes. One of the notes not being paid at maturity, Wallach advertised the goods and chattels for sale, and was proceeding with the sale when Mrs. Dermott levied a distress upon them for $3,000. This was on the 18th of May, 1857, about a year and five months before the lease would expire. The ordinary rent had been all punctually paid to the 1st of May, the month in which the distress was made, so that no rent of the ordinary kind was due at the time of the distress. Wallach having replevied the goods seized, the defendant avowed, setting up, by way of justification for the taking, the attempt to remove them from the premises, and alleging that by such removal one year's rent had accrued. There were two pleas to the avowry. I. No rent in arrear. II. No demand for the rent.
The substantial question was whether this $3,000 was "rent," or was a penalty, that is to say, whether the clause meant that in the event of a removal, or attempted removal, Mrs. Dermott might get a year's rent in advance, or whether it meant that she should have a sum of money equivalent to a year's rent "over and above" all rents, by way of penalty.
The Circuit Court for the District of Columbia, in which the case arose, gave judgment for the plaintiff. On error here, the question was the same as below and as already stated.