2004-317, MICHAEL GREEN v. SUMNER PROPERTIES, LLC

tenant and his roommate were to share the apartment and split the rent August 1, 2002, and the remaining half on or before January 1, 2003. The $3,500, which was half of the entire rent for the lease’s term, on or before 2002, through May 25, 2003. It required th e tenant and his roommate to pay number 21 at 24 Madbury Road in Durham. The lease ran from August 27, both college students, entered into a lease with the landlord for apartment The r ecord supports the following facts. The tenant and his roommate,

reimbursement. We affirm. Michael Green (tenant), $875 on his small claims action for rental the order of the Durham District Court (Taube, J.) awarding the plaintiff, GALWAY, J. The defendant, Sumner Properties, LLC (landlord), appeals

Lynne C. Christie, of Durham, by brief and orally, for the def endant.

Joanne M. Stella, of Portsmouth, by brief and orally, for the plaintiff.

No. 2004 - 317 Durham District Court

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

numbered door, the tenant testified that when he was shown the apartment, bedroom apartment, and that each apartment has its own separately bedroom apartment that shares a kitchen with apartment p. 2 22, another one - Although the landlord offered evidence that apartment 21 is a one -

that when the agent showed him the apartment, he was shown both bedrooms. pick the larger bedroom.” The evidence also included the tenant’s testimony showed him the apartment, the tena nt joked that “if he got there first, he could evidence included the tenant’s offer of proof that when the landlord’s agent The record supports the trial court’s finding of misrepresentation. The

witnesses, and determining the weight to be given evidence.” Id. issues as resolving conflicts in the testimony, measuring the credibility of 149 N.H. 774, 780 ( p. 2 2003). “[W]e defer to the trial court’s judgment on such unless they lack evidential support or are legally erroneous. Cook v. Sullivan, number of bedrooms. We will uphold the findings and ru lings of the trial court for the trial court to find that the agent misrepresented the apartment’s On appeal, the landlord first argues that there was insufficient evidence

“fair measure” of the tenant’s damages. the number of bedrooms in the apartment. The court found that $875 was a induced the tenant to enter into the lease for apartment p. 2 21 by misrepresenting The trial court ruled in the tenant’s favor, finding that the landlord’s agent had sought this amount for having had to share a bedroom with his roommate. represented one - half of the rent he paid to live in apartment 21. The tenant The tenant brought a small claims action, seeking to recover $875, which

The parties entered into a new lease for this apartment. tenant to move into an apartment that allowed him to have his own bedroom. unit. After the first semester of college ended, the landlord permitted the tenant that, as soon as one became available, he could move into a “single” continued to complain throughout the first seme ster. The landlord told the share a bedroom with his roommate and a kitchen with a stranger, and The tenant immediately complained to the landlord about having to

the tenant and his roommate to share a bedroom. they discovered that a stranger already occupied one of the bedrooms, forcing roommate arrived at p. 2 24 Madbury Road to move into the apartment, however, each have a bedroom and would share the kitchen. When the tenant and his bedrooms and a kitchen. The tenant believed that he and his roommate would apartment to the tenant. The tenant testified that the apartment had two Before entering into the lease, the landlord’s representative showed the

$1,750. evenly. Thus, the tenant’s share of the amount due by August 1, p. 2 2002, was p. 3 3

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,

opinion thereon. landlord does not challenge the amount of damages awarded, we express no entitled to seek tort damages for the landlord’s misrepresentation. As the 455. Thus, even if we assume that the tenant ratified the lease, he was still his obligations thereunder, and sue for damages” for misrepresentation. Id. at transaction[,]” or “he may elect to affirm the contract, keep its benefits, perfo rm rescind or disaffirm the agreement and refuse to proceed further with the material fact has two choices. See id. at 455. “[H]e may justifiably elect to party entering into an agreement in reliance upon a mi srepresentation of a remedies, see Mertens v. Wolfeboro Nat’l Bank, 119 N.H. 45 p. 3 3, 455 - 56 (1979). A Radiologists, 142 N.H. 168, 173 (1997), it does not deprive the party of tort ratification may deprive a party of contractual remedies, see Keshishian v. CMC The landlord’s argument stems from a mistaken assumption. While

material misrepresentation, he ratified the lease by remaining in apartment 21. rei mbursement because, even if he was induced to enter into the lease by a The landlord next asserts that the tenant was not entitled to rental

Catalano v. Town of Windham, 1 p. 3 33 N.H. 504, 512 (1990). resolve such conflicting evidence and judge the credibility of witnesses. See there was no number on the door. I t was for the trial court, as fact finder, to