Aste v. Putnam's Hotel Co.

• Citation: 247 Mass. 147,141 N.E. 666
• Parties: ASTE v. PUTNAM'S HOTEL CO. (two cases).
• Decision Date: 21 December 1923
• Court: United States State Supreme Judicial Court of Massachusetts

247 Mass. 147

141 N.E. 666

ASTE

v.PUTNAM'S HOTEL CO. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 21, 1923.

Exceptions from Superior Court, Suffolk County; Henry A. King, Judge.

Two actions at law by Anthony Aste against Putnam's Hotel Company; the first in tort for conversion of property, and the second an action alleging breaches by the defendant of the covenants and terms of a written lease. Verdicts for plaintiff, and defendant brings exceptions. Exceptions overruled.

C. W. Lavers, of Boston, for plaintiff.

C. C. Barton, Jr., of Boston, for defendant.

DE COURCY, J.

The plaintiff brought two actions, and obtained a verdict in each. One was in tort, for the alleged conversion of certain restaurant fixtures and furnishings, the property of the plaintiff. The defendant's only exception in that case was to the refusal of the court to give a certain requested ruling; and this was waived at the argument. The second action was in contract, for violation of the plaintiff's rights to quiet enjoyment of, and an alleged ouster from, certain premises; the plaintiff claiming as assignee of a certain lease, according to the first count, and by virtue of some sufficient contract of tenancy according to the second count. A recital of the facts, as the jury could find them, is necessary, before discussing the exceptions.

About April 5, 1920, the defendant sold out to the Napoli Cafeteria, Inc., the fixtures and going business of a restaurant at 286 Huntington avenue, Boston, and gave to it a lease of the restaurant premises and of the adjacent vacant store; which store the Napoli Cafeteria, Inc., equipped as a cafeteria. The lease was for a term of ten years from April 12, 1920, at a rental payable $300 monthly in advance on the twelfth of each month. It contained a covenant that the lessee ‘or others having its estate in the premises will not assign this lease * * * without the consent of the said lessor or of those having its estate in the premises first being obtained in writing allowing thereof’; with a right of entry reserved for a breach of the covenant. The Napoli Cafeteria, Inc., entered into the premises April 12, 1920; installed numerous fixtures; and made various improvements suitable to the business to be conducted. On October 25, 1920, the lease was assigned to the De Angelis Company with the lessor's written consent. The De Angelis Company assigned to one Samuel Present on February 5, 1921, the lessor's written consent being again obtained. The same day Present executed to one Fopiano and Rosa Giolitto a mortgage of the fixtures, furnishings, merchandise and good will of the restaurant and cafeteria, which had been transferred to him by a bill of sale dated January 29, 1921 (not in evidence) from the De Angelis Company. On March 1, 1921, Fopiano assigned his rights in this mortgage to Mrs. Giolitto.

Present paid the rent due February 12, 1921, but paid none thereafter, and ceased to be an active factor about three weeks after the assignment of the lease to him. About the 6th of March, 1921, the Present mortgage was foreclosed, and at the sale the property covered by it was bid in by the plaintiff, apparently for Mrs. Giolitto, the mortgagee. The plaintiff at once placed Mr. and Mrs. Forfori in charge of the business. These persons had been about the premises since the beginning in various capacaties. They had been interested in the De Angelis Company; Mr. Forfori had been chef during the present proprietorship; and they had run the business after Present's retirement. Mrs. Forfori is the mother of the plaintiff. Mr. Forfori duly paid the March 12 rent by check and received a receipt from the defendant; but the money was in fact furnished by the plaintiff. Aste (the plaintiff) bought out Mrs. Giolitto, receiving a bill of sale dated March 22, 1921, of all the personal property upon the premises, ‘Meaning and intending hereby to transfer and convey all rights of property and tenancy which I have in the premises.’ He gave back to her a generalchattel mortgage of the said personal property. Thereafter the Forforis conducted the business, mainly in their own names, but actually in the plaintiff's behalf.

The April 12 rent was paid by Mrs. Forfori; $200 on the due date and the balance later in the month. The plaintiff furnished $150 of this. During April and May, 1921, there were various conversations with the defendant's treasurer, Putnam, with reference to the rent, the state of the business, the possibility of selling the restaurant and cafeteria, renewing the lease, etc., at which there were variously present Mr. and Mrs. Forfori, a real estate broker one Allen, the plaintiff, Aste, his attorney, Jeffery, and Putnam. These conferences reached no definite agreements, and on May 11, 1921, the defendant gave the Forforis written notice to vacate the premises in or within thirty days after May 12, 1921. The reason given was that the premises had been relet by the...