Farmer v. Davies

• Decision Date: 06 March 1922
• Docket Number: No. 80.,80.
• Citation: 116 A. 706
• Parties: FARMER et al. v. DAVIES.
• Court: New Jersey Supreme Court

116 A. 706

FARMER et al.

v. DAVIES.

No. 80.

Court of Errors and Appeals of New Jersey.

March 6, 1922.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Guy Farmer and another against John Davies. Judgment for plaintiffs, and defendant appealed to the Supreme Court, which affirmed the judgment, and defendant again appeals. Reversed.

Harold Simandl and Samuel B. Finklestein, both of Newark, for appellant.

Silverman & Grosman, of Newark, for respondents.

ACKERSON, J. This action was brought by the plaintiffs in the Second district court of the city of Newark, to recover the amount of a check for $200, given by the defendant to them as a deposit upon the purchase price of the business and remainder of the term of a lease of a moving picture theater, which the plaintiffs agreed to sell to defendant for $2,600, upon the condition, however, that unless the landlord, who owned the building in which the theater was located, would give to the defendant "a lease of straight five years and five years' privilege at the same rental," the deposit of $200 was to be returned to the defendant. No other terms, covenants, or restrictions for the proposed lease were provided for in said agreement. The landlord offered to the defendant a lease for the term of five years with a five-year privilege of renewal at the same rental, but included therein a covenant against the assignment thereof or the subletting of the premises by the lessee, without the consent of the landlord, and refused to give a lease without such restrictive covenant in it.

The defendant refused to accept the lease thus offered, upon the ground that it was not in accordance with the contract between the plaintiffs and defendant, because it contained the covenant against assigning or subletting without the lessor's consent, and therefore stopped payment on the aforesaid check. The district court, sitting without a jury, gave judgment for the plaintiffs for the sum of $204.50. The defendant appealed to the Supreme Court, which affirmed the judgment, and defendant now appeals to this court.

The grounds of appeal present the single question of whether the defendant was justified in stopping payment of the check, and this depends upon whether the tender of a lease, embracing a covenant preventing the lessee from assigning or subletting the premises without the consent of the landlord, was a compliance with the terms of the agreement to procure the lease. The agreement between the parties...