Home | Databases | WorldLII | Search | Feedback Reports of the Trust Territory of the Pacific Islands

  Download original PDF

Mottan v Lanjen [1962] TTLawRp 8; 2 TTR 347 (16 November 1962)

TRIAL DIVISION OF THE HIGH COURT

MARSHALL ISLANDS DISTRICT

Civil Action No. 181

MOTTAN

Appellant

v.

LANJEN and TOMIJWA

Appellees

November 16, 1962

Action brought to interpret lease agreement and for increased rental payments. The Marshall Islands District Court held that when nature of business conducted on rented property was changed during term of lease, amount of rental should reflect such change. On appeal, the Trial Division of the High Court, Chief Justice E. P. Furber, held that although decision of District Court was correct, evidence was insufficient to establish amount of rent due.

Remanded with instructions.

1. Landlord and Tenant-Commercial Lease-Change in Nature of Business

Where business contemplated under lease agreement was usual type of retail store in Marshall Islands, with no mention of selling alcoholic beverages, sale of beer for consumption on premises changed nature of business to a "club."

2. Landlord and Tenant-Commercial Lease-Change in Nature of Business

Where lease agreement contemplated usual type of retail store in Marshall Islands, change in nature of business from retail store to club should not have been made without consent of lessors.

3. Landlord and Tenant-Commercial Lease-Change in Nature of Business

While business was operated as club instead of retail store as contemplated in lease agreement, rent should be appropriate for changed type of business unless and until new agreement is reached with lessors.

4. Judgments-Stay of Execution

Execution of judgment will not be stayed pending appeal unless either appellate or reviewing or trial court orders stay for cause shown and upon such terms as it may fix. (T.T.C., Sec. 201)

5. Judgments-Order in Aid of Judgment

Order in aid of judgment may call for payments before appeal is finally determined, if order has been entered that appeal shall not stay the judgment. (T.T.C., Sec. 290)

6. Judgments-Stay of Execution

Person who desires to delay effect of judgment should be ready to give security or other guarantee that judgment will be paid or otherwise complied with if it is affirmed in whole or in part, as result of the appeal. (T.T.C., Sec. 290)

7. Judgments-Damages

Where District Court judgment does not cover matter of amount due in accordance with it, justice requires both sides be given opportunity to present evidence as to this issue.

FURBER, Chief Justice

The appellant claims there was no formal trial in the District Court, but just an informal hearing. The only ways in which he claims to have been prejudiced by this, however, are: (1) by the court's finding that the appellant Mottan started selling beer January 1, 1962, as stated in the court's memorandum of the case (but not mentioned in the judgment), while he claims he did not start until February, and (2) that the District Court made no mention of the fact that some of the rent has been paid in advance for which the appellant should have been given credit.

The appellees admit that a certain amount of rent, at the old rate, has been paid in advance, but they were unable to agree with the appellant as to the exact amount. They further still insist that the appellant started selling beer in January.

There was considerable discussion as to whether the appellees had signed the alleged written lease, which the appellant claims they did. The appellees admit, however, that there was an oral lease to just the same effect as the written lease claimed by the appellant, so far as the issues raised in this case are concerned. The court therefore announced at the hearing that it considered it utterly immaterial so far as this case is concerned whether there was a written lease since there is no rule at present in the Marshall Islands District requiring such agreements to be in writing.

OPINION

This case was obviously presented to the District Court in a very informal manner, the basic issue being simply as to the interpretation of the lease agreement involved. As to that issue there seems to be no dispute about the facts.

[1-3] The appellant Mottan had obtained permission from the appellees to set up a retail store at a rental of $5.00 a month upon land in which they had rights. At that time the business contemplated was simply the usual type of retail store in the Marshall Islands without any mention of the selling of alcoholic beverages in any form. In January or February the appellant, without consulting the appellees, started selling beer for consumption on the premises, thereby changing the nature of the business to what the appellees call a "club". The court fully concurs with the District Court's decision that such a change in the nature of the business should not have been made without the consent of the appellees, and that while the business was so operated it would pay rent appropriate for the changed type of business unless and until a new agreement was reached with the appellees.

It is agreed that the appellant ceased selling beer in his business in September owing to the objections of the appellees.

[4-6] It also appears that there was a misunderstanding by the parties as to the effect of the Notice of Appeal, since the court had failed to act in any way upon the appellees' previously filed motion dated October 11, and filed October 12, 1962. For future guidance of all concerned attention is invited to Section 201 of the Trust Territory Code which expressly provides that pending an appeal, the execution of a judgment will not be stayed "unless either the appellate or reviewing or the trial court orders a stay for cause shown and upon such terms as it may fix." Attention is also invited to Section 290, indicating that an order in aid of judgment may still call for payments before an appeal is finally determined if an order has been entered that an appeal shall not stay the judgment. The idea is that a person who desires to delay the effect of a judgment should be ready to give security, or other guarantee, that the judgment will be paid, or otherwise complied with, if it is affirmed in whole or in part, as a result of the appeal.

[7] While the basic decision of the District Court is concurred in, that court's judgment does not cover the matter of the amount due in accordance with it, and the court believes that justice requires that both sides be given opportunity to present evidence as to this.

JUDGMENT

The judgment of the Marshall Islands District Court in its Civil Action No. 110 is set aside and the action remanded to that court with instructions to reopen the trial and take evidence on the question of when the defendant Mottan, in that action, began selling beer and how much rent has been paid in advance by the plaintiffs having obtained goods from the defendant's store, or otherwise, and then render a new judgment in accordance with the foregoing opinion, specifying the amount due from the defendant to the plaintiffs, figuring the rent at the rate of $20.00 per month for the period the defendant was selling beer for consumption on the premises, and at $5.00 per month when he was not doing so, and giving him credit for whatever rent has been paid in advance in goods or otherwise.