Curtis v. City of Portsmouth

• Decision Date: 16 March 1894
• Citation: 67 N.H. 506,39 A. 439
• Parties: CURTIS et al. v. CITY OF PORTSMOUTH.
• Court: New Hampshire Supreme Court

39 A. 439

67 N.H. 506

CURTIS et al.

v. CITY OF PORTSMOUTH.

Supreme Court of New Hampshire. Rockingham.

March 16, 1894.

Bill in equity by Joseph R. Curtis and others against the city of Portsmouth to enforce specific performance of a contract. Case discharged.

The Portsmouth Academy, a corporation located at Portsmouth, on the 28th day of March, 3891, leased the property known as the "Portsmouth Academy," situate in Portsmouth, to the Storer Post, for the term of 15 years from the 1st day of April, 1891, for the rent of $500 per year, in gold coin. The lease provided, among other things, that the Storer Post should make all necessary repairs, and should have the right to make, at their own expense, any interior alterations and repairs which would not lessen the strength of the edifices, and any additions upon the exterior which would not alter or injure the main building: that the lessee should pay all taxes assessed on the premises, and should keep the property insured in the sum of $5,000 for the benefit of the lessor. There were also provisions that the lessee would not underlet the premises or assign the lease without the consent in writing of the lessor, and that at the expiration of the lease the lessor would sell, and the lessee would purchase, the premises for the sum of $9,827, in gold, upon condition said buildings, when so purchased, should be used as a memorial hall and public library, and for no other purpose whatever. In May, 1891, negotiations were begun between the city and the Storer Post relative to an assignment of the lease by the post to the city, and resulted in the adoption, July 24, 1891, of the following ordinance, viz.: "Joint resolution authorizing the city to assume the lease of the Portsmouth Academy now held by Storer Post, No. 1, G. A. R. Be it ordained by the city councils of the city of Portsmouth, that by this ordinance the city does hereby assume and become responsible for the faithful performance of all and every portion of the lease now held by Storer Post, No. 1, G. A. R., of this city, of the building and land of the Portsmouth Academy, from its proprietors, executed March 28, 1891, said lease having been duly and legally assigned by said post to the city; and be it also ordained, that a joint committee, consisting of three members from each branch of the city councils, with three members from the board of trustees of the public library, be and hereby are constituted a committee for the purpose of remodeling and improving the said academy building for the following purposes: The upper hall as a memorial hall and for the use of said Storer Post, No. 1, G. A. R., and the lower hall for the use of the public library. The committee on finance are hereby authorized to create a loan for such sum as may be required for the purpose of carrying out the provisions of this ordinance." This ordinance was recorded in the city records, and a copy thereof presented to the Storer Post, which on the 29th day of July, 1891, voted that certain members thereof be granted full power to assign to the city the lease of the Portsmouth Academy held by the post. On the 30th day of July, 1891, the following assignment was made and duly executed: "Storer Post, No. 1, Department of New Hampshire, Grand Army of the Republic, an unincorporated organization, of Portsmouth, N. H., by its dulyauthorized committee, Joseph R. Curtis, Charles H. Besselievre, Matthew T. Betton, Marcus N. Collis, Joseph Foster, and Henry S. Paul, for and in consideration of receiving from the city of Portsmouth the exclusive right to use and control, without rent, of the upper floor or upper hall of the Academy building, in said Portsmouth, with the right of access to the same, for itself and its auxiliary organizations, now enjoyed by said post under its lease of the building and land of the said Portsmouth Academy from its proprietors, executed March 28, 1891, during the term of said lease, or during the ownership of said building, if purchased under the privileges of the lease by the city of Portsmouth, does hereby assign said lease to the said city of Portsmouth under the provisions of the joint resolution passed by the common council of the city of Portsmouth, May 28, 1891, and by the board of mayor and aldermen, July 24, 1891." Storer Post obtained the written assent of the lessors to the assignment, and delivered the assignment to the city clerk, who sent it...