Cavanaugh v. Cook

• Decision Date: 06 July 1915
• Docket Number: No. 4841.,4841.
• Citation: 94 A. 663
• Parties: CAVANAUGH v. COOK.
• Court: Rhode Island Supreme Court

94 A. 663

CAVANAUGH

v. COOK.

No. 4841.

Supreme Court of Rhode Island.

July 6, 1915.

Exceptions from Superior Court, Providence and Bristol Counties; John W. Sweeney, Judge.

Action by John J. Cavanaugh against James Cook. Verdict for plaintiff, and defendant excepts. Exceptions sustained, and case remanded, with direction to enter judgment for defendant.

Cushing, Carroll & McCartin, of Providence, for plaintiff. Frank H. Wildes, of Providence, for defendant.

JOHNSON, C. J. This is an action of trespass and ejectment brought for possession of the ground floor and basement of a building located at Nos. 14 and 16 on North Main street in the city of Providence. The plaintiff, on the 3d day of May, 1912, leased said premises to the defendant for a period of five years, from the 3d day of May, 1912, to the 3d day of May, 1917, at a yearly rental of $900 payable in equal monthly payments of $75 each on the first business day of each and every month. The defendant took possession under the lease. Among other provisions the lease provides:

"And the said lessee for himself and for his executors, administrators and assigns, covenants with the said lessor, his heirs and assigns, that he will pay said rent at the times and in the manner aforesaid; and that in case of failure on his part to pay the same within five days subsequent to the time above specified (and it shall not be required that any demand be made for the same) or in case of failure to perform all the covenants and agreements contained in this lease on the part of the said lessee to be kept and performed, the said lessor, his heirs and assigns shall be at liberty to enter upon said premises and declare this lease at an end and take immediate possession of the premises."

The rent which was due and owing on the 1st day of July was not paid on the date specified, nor was it paid within five days subsequent to the date it was due. The defendant testified that he sent a check for the rent July 16, 1914. The plaintiff denies having received the check. The defendant claimed that the plaintiff's agent said he could send a check from West Harwich, Mass. The plaintiff testified that the plaintiff's agent had no authority to make extensions, and only had authority to receive the rent. On July 27, 1914, the plaintiff commenced this action of trespass and ejectment against the defendant. July 31, 1914, the plaintiff commenced an action of covenant against the defendant for the rent due on July 1, 1914, under the terms of the lease. On August 5, 1914, a writ of mesne process was issued auxiliary to the process of July 31, 1914. On September 1, 1914, the plaintiff commenced an action of the case for use and occupation of the premises, and the declaration in the last-named action was one consisting of the common counts in assumpsit. On August 5, 1914, the defendant tendered the plaintiff all moneys due him to date, including costs and expenses. This was refused, and after the return to court of the writs in the actions of covenant, and of assumpsit for use and occupation, the defendant filed in each case a plea of tender, and paid into court $82.70 in the action of covenant, and $75 in the action for use and occupation. Both said actions are still pending in the district court of the Sixth judicial district. In the case at bar the defendant submitted to decision for the plaintiff for possession and costs in the district court of the Sixth judicial district on September 15, 1914, and claimed a jury trial and gave bond under the statute to pay rent which may become due pending action. The case was tried before a justice of the Superior court, with a jury, October 27, 1914, and at the conclusion of the testimony the justice presiding directed the jury to return a verdict for the plaintiff. The defendant excepted, and the case is before this court upon the defendant's bill of exceptions, containing the exception to the direction of a verdict for the plaintiff and other exceptions taken during the trial.

We will first consider the defendant's exception to the action of the justice presiding in directing a verdict for the plaintiff. Did the evidence show that the plaintiff was entitled to possession of the premises in question? We think the evidence did so show, unless the action in assumpsit for use and occupation brought September 1, 1914, constituted a waiver of the forfeiture. The declaration in said action is:

"For that the defendant on the first day of September, 1914, being indebted to the plaintiff in the sum of $75 on book account, according to the account hereunto annexed, in consideration thereof then and there promised" etc.

There was no account annexed. "And also, for that the defendant * * * on the day of the date of the plaintiff's writ, being justly indebted to the plaintiff in one other sum of $100." Then follow the usual common counts in assumpsit, including the count for "use and occupation of a certain messuage or tenement of the plaintiff, situate at said Providence by the said defendant at his request; and by permission of the plaintiff for the space of ——— months before then elapsed, used, occupied, and enjoyed," and closing with the allegation of a promise in consideration thereof to pay the plaintiff said sums of money, etc. The writs in the cases above referred to dated, respectively, July 31, 1914, and September 1, 1914, were introduced in evidence by the defendant. Arthur Cushing, attorney for the plaintiff, stated that he desired to "take the stand and explain about the commencement of these two suits." He was sworn and testified:

"The first action was an action of covenant commenced to recover the rent from the month. * * * That was payable the 1st of July, and due before any forfeiture or breach under the lease, and was commenced under the lease in furtherance of the lease. The second case was not commenced under the lease at all, but was commenced as an action of assumpsit for use and occupancy for the premises by Mr. Cook subsequent to forfeiture."

This testimony is simply confirmatory of the language of the declaration itself, showing that the action is one for use and occupation; it also serves to...