Brown v. Schiappacassee

• Decision Date: 17 November 1897
• Citation: 72 N.W. 1096,115 Mich. 47
• Court: Michigan Supreme Court
• Parties: BROWN v. SCHIAPPACASSEE.

72 N.W. 1096

115 Mich. 47

BROWN v. SCHIAPPACASSEE.

Supreme Court of Michigan

November 17, 1897

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by William J. Brown against Louis Schiappacassee. From a judgment for plaintiff, defendant brings error. Affirmed.

Bowen Douglas & Whiting, for appellant.

Walter Ross (George H. Prentis, of counsel), for appellee.

LONG, C.J.

On February 28, 1889, one J. C. Mueller made, executed, and delivered to the defendant a written lease of certain premises in Detroit. The lease provides: "The said party of the first part, in consideration of the rents and covenants herein specified, does hereby let or lease to the said party of the second part the following described premises, situate and being in the city of Detroit, Wayne county, state of Michigan to wit: One-half of cellar in front of stairway leading down to G. Murray's saloon in store 110 Woodward avenue corner of Congress street. I consent to his occupying the side of said store on Congress street from rear of show window at corner of Congress street to entrance to cellar, as a fruit and nut stand, on the sidewalk next to the building for the term of six years from and after the first day of May, 1889, on the terms and conditions hereafter mentioned to be occupied for fruit and nuts, and in no case to be used for any business deemed extra hazardous on account of fire." The lease contained the usual covenants for quiet and peaceable possession of the premises demised, and for the payment of rent of $300 per year, payable monthly in advance. The defendant went into possession of the premises, and continued to occupy them, except as will be hereafter stated. All the rights of Mueller under this lease were assigned to plaintiff in January, 1890. This action was brought to recover the rents claimed to be due on the lease from May 10 1894, to and including January, 1895, at $25 per month. On the trial in the circuit court the defendant testified that he occupied the whole of the premises including the sidewalk space up to May 10, 1894, when the city of Detroit caused his sidewalk stand to be removed, and since that time he has not been permitted by the city to occupy that space. The defendant offered to show that for many years prior to the time when this lease was made the city of Detroit permitted sidewalk spaces to be occupied for fruit stands, and that such fruit stands were so occupied by the consent of the owners of the premises; that the fruit-stand privilege was the principal part of the value of the premises to the lessee; and that the license to so occupy the sidewalk being incorporated in the lease, is, in effect, a covenant for occupancy, and forms a part of the consideration in the lease. The court refused to permit this showing to be made, and held that the common council had the power to regulate all matters pertaining to the streets,...