Ft. Orange Barbering Co. v. New Haven Hotel Co.

• Decision Date: 02 August 1917
• Court: Connecticut Supreme Court
• Parties: FT. ORANGE BARBERING CO. v. NEW HAVEN HOTEL CO.

101 A. 505

92 Conn. 144

FT. ORANGE BARBERING CO.

v. NEW HAVEN HOTEL CO.

Supreme Court of Errors of Connecticut.

Aug. 2, 1917.

Appeal from Superior Court, New Haven County; James H. Webb, Judge.

Action by the Ft. Orange Barbering Company against the New Haven Hotel Company. Judgment for defendant, and plaintiff appeals. No error.

The finding shows that on the 17th day of October, 1911, the defendant leased to the plaintiff in writing certain space in the Hotel Taft, in New Haven, to be used as a barbering establishment, for a period of five years from the 1st day of September, 1912, at an annual rental of $2,700, and with an option for a renewal thereof for a further period of five years at the. same rental, the rentals being payable monthly in advance. This lease, among other stipulations, provided that there was to be a forfeiture in the 'event of nonpayment of rent. The forfeiture clause was in the following language:

"Provided, however, and it is further agreed that, if the rent shall become due and payable as aforesaid, or if the said Ft. Orange Barbering Company shall * * * not perform and fulfill each and every of the covenants and stipulations herein contained to be performed by said Ft. Orange Barbering Company, then this lease shall thereupon, by virtue of this express stipulation therein, at the option of said managers, expire and terminate, and said managers may at any time thereafter re-enter said premises and the same have and possess as of their former estate, and without such re-entry may recover possession thereof in the manner prescribed by the statute relating to summary process; it being understood that no demand for rent and no re-entry for condition broken as at common law shall be necessary to enable the lessor to recover such possession pursuant to said statute relating to summary process, but that all right to any such demand or any such re-entry is hereby expressly waived by the said Ft. Orange Barbering Company."

On or before April 1, 1912, the plaintiff entered into the leased premises, and has ever since continued to occupy the same, claiming the right to do so under the lease. The plaintiff, except in two instances, neglected to pay the monthly rental on the 1st day of each month in advance. In a majority of instances these payments of rent were made after the middle of the month, and on two different occasions one payment was accepted for two months' rent. All of the payments were made by check, mailed by the plaintiff from the city of New York to the defendant at New Haven. These checks were accepted by the defendant as and for the payment of rent then due and owing by the plaintiff. On September 14, 1916, the plaintiff was two monthly payments of rental in arrears, and on this day the defendant served notice upon the plaintiff to quit possession of the premises. It was admitted upon the trial that a check for some installment of rent was sent by the plaintiff to the defendant on September 14, 1916, which the defendant refused to accept and returned to the plaintiff. No evidence was offered by the plaintiff as to the amount of this check, nor as to what installment of rent it should be applied, nor any evidence whatever concerning it. No evidence was offered by the plaintiff to show whether or not, prior to September 14, 1916, the defendant had ever in any manner notified the plaintiff that it would claim a forfeiture of the lease upon the failure of the plaintiff to pay the monthly installments of rent at the time they became due and payable under the terms of the lease. On September 23, 1916, the plaintiff tendered to the defendant a sum of money that would be in full of all rent to October 1, 1916, which the defendant refused to accept. On September 30, 1916, the defendant brought an action of summary process against the plaintiff, returnable before James E. Wheeler, Esq., a justice of the peace for New Haven county, on the 6th day of October, 1916, claiming that this lease had been forfeited by the nonpayment of rent. The parties appeared before the justice and were duly heard, and on October 7, 1916, judgment was rendered in favor of the defendant (the New Haven Hotel Company) that the company recover possession of the premises. Thereupon this plaintiff (the Ft. Orange Barbering Company) sued out a writ of error to the court of common pleas for New Haven county, which writ was subsequently withdrawn by the plaintiff. During the year 1912 the plaintiff carried on the business of a barbering establishment at a loss of $434.15, but thereafter carried on this business at an annual profit. Upon the opening of this business, supplies were purchased to the amount of $1,703.50. These supplies, consisting of hat racks, cuspidors, bottles, shaving mugs, massage machines, vases, etc., are still for the most part on hand, and together with towels and linen, of the value of $150, are of value to the plaintiff. The plaintiff offered no evidence to prove that it ever made any other tender to the defendant of the monthly rentals past due, except the offer of payment made on September 23, 1916, herein mentioned. The plaintiff at the trial declared its willingness to pay to the defendant all installments of rent in arrears, with interest thereon, but made no tender thereof, nor offered evidence of any offer or tender other than that just mentioned. None of the irremovable fixtures in said barbering establishment, such as barber chairs, mirrors, washstands, etc., were installed by or belong to the plaintiff. They were installed by and are the property of the owner of the Hotel Taft. Since the year 1912, the plaintiff has carried on its business on the premises in question at an annual profit, and it is reasonable to expect that this business would continue to be profitable to the plaintiff, should it decide to avail itself of the option to extend said lease for a further period of five years from August 31, 1917, and be permitted to remain in possession of the same.

The plaintiff in its complaint alleged that, "by reason of the defendant's acquiescence in the delayed payments for a period of more than four years, the defendant induced the plaintiff to believe, and the plaintiff did believe, that a strict performance of the covenants in the lease in reference to the time of payment of the rent on the 1st of each month would not be required"; that "the plaintiff is ready and willing to pay the defendant all the rents that may be due or become due, with such interest as may be due thereon"; that "the defendant has suffered no loss or inconvenience by reason of the delayed payments"; and that the issuance of an execution of summary process would work irreparable loss to the plaintiff. Those allegations were denied by the defendant in its answer. The judgment file finds the issues for the defendant Hotel Company.

Samuel Campner, of New Haven, and Lewis M. Scheuer, of New York City, for appellant. Robert C. Stoddard and Jacob P. Goodhart, both of New Haven, for appellee.

RORABACK, J. (after stating the facts as above). This case turns upon the sufficiency of the findings to sustain the conclusion of the trial court in rendering judgment for the defendant. The plaintiff's objections to the decision of the superior court, which are urged here, are summarized as follows:

"First. Because it appears that the plaintiff will suffer irreparable injury, damage, and loss, should the forfeiture of the lease be enforced. Second. Because it is a fixed rule in equity to give a tenant equitable relief against forfeiture for breach of covenant to pay rent, irrespective of any question as to whether such forfeiture would or would not result in irreparable damage to the tenant, it being the mere inequity of a forfeiture that prompts the relief. Third. Because, in view of the previous relations of the parties and their mutual conduct, it would be unfair, inequitable, and unjust, without previous notice of...