Banks v. White

• Decision Date: 30 April 1854
• Citation: 33 Tenn. 613
• Parties: JAMES BANKS et al. v. MILES WHITE.
• Court: Tennessee Supreme Court

33 Tenn. 613

JAMES BANKS et al.

v.MILES WHITE.

Supreme Court of Tennessee.

April Term, 1854.

FROM SHELBY.

This was an action of debt, instituted by Miles White against J. Banks & Co., in the common-law and chancery court of Memphis, upon divers notes given for the rent of a lot in that city. It appears that, in 1848, Miles White leased the lot to the plaintiffs in error for the term of five years, and these notes were executed for the rent, payable annually. It was stipulated in the lease, which was in writing, that Banks & Co. were to build a cotton-shed upon the lot, for their occupation and use, which they accordingly did. Not long afterward the municipal authorities of Memphis had the streets graded which bounded the lot, and thereby rendered the premises useless and untenable, and the lessees, in consequence, had to abandon them. This they did, without the consent of the lessor, which they invoked beforehand. Upon the trial of the action in said court this matter was submitted, on an agreed case, to his honor J. C. Humphreys, judge, presiding by interchange, who decided that these facts constituted no defence to the notes, and gave judgment accordingly. The lessees thereupon appealed in error to this court.

T. L. Sullivan, for the plaintiff in error; H. G. Smith, for the defendant in error.

CARUTHERS, J., delivered the opinion of the court.

On the 1st day of October, 1848, Miles White made a written lease, to J. Banks & Co., of the eastern half of lot 372, in the city of Memphis, for a term of five years, at a stipulated amount per annum, to be paid on the 1st of April and October of each year, for which notes were taken. Upon these notes this suit is brought. The defense is failure of consideration. The covenant required that a cotton-shed should be erected on the said lot by the lessees. It appeared that during the pendency of the lease the shed was built and occupied by the lessees. By the opening a new street on each side of said lot, by the city authorities, the same was overflowed with water, and became entirely untenable and useless. It was abandoned by the lessees, and they removed the shed. It is not shown that this abandonment was sanctioned, in any way, by the lessor.

The only question is whether these facts constitute a legal defence to an action on the notes. The court below thought not, and so do we.

The law does not imply any warranty as to the continuing condition of the property demised. The only implied...