Barry v. Herring

• Decision Date: 08 July 1927
• Docket Number: 49.
• Citation: 138 A. 266,153 Md. 457
• Parties: BARRY v. HERRING.
• Court: Maryland Court of Appeals

138 A. 266

153 Md. 457

BARRY v. HERRING.

No. 49.

Court of Appeals of Maryland

July 8, 1927

Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.

"To be officially reported."

Suit by Charles E. Herring against Martin J. Barry. Decree for plaintiff, and defendant appeals. Affirmed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Charles P. Coady, Jr., and John A. Farley, both of Baltimore (Coady & Farley, of Baltimore, on the brief), for appellant.

Isaac Lobe Straus, of Baltimore (J. Paul Schmidt, of Baltimore, on the brief), for appellee.

PATTISON J.

One Martin J. Reilly on the 25th day of November, 1921, leased unto the appellee, Charles E. Herring, the "first floor and store premises, with the use of yard and ingress and egress to and from the same and also of yard fence for advertising," on the southeast corner of North and Maryland avenues, known as No. 33 West North avenue, for the term of five years, counting from the 1st day of December 1921, and ending on the 30th day of November, 1926, at and for the rental consideration therein mentioned, with the right and privilege to the lessee to extend said lease for a further period of five years, counting from the 1st day of December, 1926, and ending on the 30th day of November, 1931.

The lessee, under the lease, took possession of and occupied said premises, and six months prior to the expiration of said five-year period, or six months prior to the 1st day of December, 1926, gave notice in writing to the lessor of his intention to extend the lease for said additional period of five years.

On the 10th day of November, 1926, Martin J. Reilly sold the said property, 33 West North avenue, including the premises leased to Charles E. Herring, unto the appellant, Martin J. Barry subject to said lease.

On the 4th day of December, 1926, a fire broke out in said building, consisting of three stories, situated on the southeast corner of North and Maryland avenues, whereby considerable damage and injury was done thereto, the greater part of which, however, was in the second and third stories of said building.

The lease of said property from Reilly to Herring contained the following provision:

"If the property shall be destroyed or rendered untenantable by fire, the tenancy hereby created shall be thereby terminated, and all liability for rent hereunder shall cease upon payment proportionately to the day of fire or unavoidable accident."

By the terms of the lease, the rent was to be paid in equal installments on the 1st day of each and every month, in advance, and, pursuant to this requirement, the appellee had sent his check to the appellant for the rent of said property for the month of December, 1926, when on December 7th of that year the appellant wrote the appellee saying:

"I am inclosing herewith a check for $180.82, for the unused portion of your rent at 39 W. North avenue (meaning 33 West North avenue). This will notify you that by virtue of recent fire your lease will cease to exist. You will note that I have not made any charge for rent for the day of fire."

The appellee, by letter of December 8, 1926, returned the check to the appellant, saying:

"I am returning the check herewith to you. The recent fire has not terminated my lease, which, I am advised continues in full force and effect. Although the fire, of course, damaged the building, it did not destroy the premises leased to me or render them untenantable, as contemplated by the clause of the lease bearing upon the subject, the meaning of which clause, I am advised, is well ascertained, and the purpose of which is primarily for the protection and benefit of the tenant. Such repairs as may be necessitated by the fire may, by the use of reasonable promptness, be made in a short while, so that there will be only a brief and partial interruption to my business."

On the same day that he returned this check to the appellant, the appellee filed his bill in the circuit court for Baltimore City, asking that the appellant be enjoined and restrained from terminating the lease and from re-entering or resuming possession of the demised premises and evicting or ousting the appellee therefrom.

The bill alleged among other things that the appellee, plaintiff below, took possession and occupancy of the leased premises, and, relying upon the terms and provisions of the lease, laid in a large and valuable stock of merchandise and bought and installed upon the premises fixtures of great value, the said stock and fixtures amounting in value to $12,000. In addition thereto, the appellee expended from time to time, during the term of his tenancy, over $1,800 upon the building and premises, the items of which with the cost of each are fully set out in the bill.

It was also alleged in the bill that the leased building and premises were considerably damaged by the fire, though the greater part of the damage was to the second and third stories; that the part of said building leased to and occupied by the appellee, so far from being destroyed or rendered untenantable by said fire, may be repaired and restored in a reasonably short time and at an expense relatively small and inconsiderable in comparison with the value of said building; that the interruption in appellee's business, caused by the fire, will be for a few weeks only, and, as such interruption is so relatively slight as compared with the unexpired part of the term of his tenancy, he is willing to pay in full the whole rent ascertained and prescribed by said lease for said premises during the period of the interruption in his business and until the expiration of the said term on the 30th day of November, 1931.

The bill further alleged "that by reason of the establishment, growth, and development of the said valuable business and the good will thereof, at and in said leased...