Farr v. Kenyon

• Citation: 39 A. 241,20 R.I. 376
• Parties: FARR v. KENYON.
• Decision Date: 29 January 1898
• Court: Rhode Island Supreme Court

39 A. 241

20 R.I. 376

FARR

v. KENYON.

Supreme Court of Rhode Island.

Jan. 29, 1898.

Exceptions from court of common pleas, Providence county.

Action by Richard W. Farr against George H. Kenyon. There was a verdict for defendant, and plaintiff excepts. Exceptions sustained.

Clarence A. Aldrich, for plaintiff.

Van Slyck & Mumford, for defendant.

MATTESON, C. J. This is an action of trespass and ejectment to recover possession of certain leasehold premises because of the breach of a covenant in the lease. Originally, the city of Providence leased certain premises to one William Band. Band subsequently leased a portion of the premises so leased to him to the defendant. The lease from Band to the defendant contains a covenant that the lessee shall not underlet the demised premises, or any part thereof, without the consent in writing of the lessor, and a condition for a forfeiture of the lease in case of default in the performance of the covenants on the part of the lessee. The lease also stated that the demised premises were to be used and occupied for the sale of tobacco, cigars, fruit, confectionery, and periodicals only, and for no other purpose, without the written assent of the lessor first obtained. Band sent to the defendant a letter, of which the following is a copy: "Providence, R. I. Oct. 1st, 1891. Doctor George H. Kenyon—Dear Sir: Yours of the 30th at hand. I intend to give up my stationery and confectionery departments hereby give you permission to use the store No. 15 1/2 Greenwich St. for the sale of stationery and all other goods you think will sell with the present stock; dry goods, notions, liquors, and all intemperance drinks excepted. Yours, truly, William Band." The plaintiff succeeded to Band's interest under the lease from the city of Providence in June, 1892. At this time the defendant had underlet portions of the premises to two tenants, without the written consent of Band. The defendant subsequently attorned to the plaintiff. In February, 1897, the defendant underlet a portion of the premises to another tenant without the written assent of the plaintiff, who thereupon, in the latter part of the following month, brought this suit. At the trial in the common pleas division the jury returned a verdict for the defendant. A number of exceptions were taken by the plaintiff to the rulings of the court, upon which two of the questions raised were argued at the hearing in this division on the plaintiff's petition for a new trial: (1...