Hinsman v. Marble Sav. Bank

• Decision Date: 01 October 1929
• Citation: 147 A. 270,102 Vt. 217
• Parties: MARY MEAD HINSMAN v. MARBLE SAVINGS BANK
• Court: Vermont Supreme Court

147 A. 270

102 Vt. 217

MARY MEAD HINSMAN v. MARBLE SAVINGS BANK

Supreme Court of Vermont

October 1, 1929

May Term, 1929.

Landlord and Tenant---Breach of Implied Covenant as to Use---Effect of Breach of Covenant in Lease---Forfeiture---Lessor's Duty with Respect To Claiming Forfeiture---Reentry or Its Legal Equivalent as Requisite for Termination of Lease for Breach of Covenant---Justice Ejectment---G. L. 2146---Rights of Lessor under Re-entry Clause---Presumptions---Remand of Cause for Further Proceedings.

1. Where part of building specially constructed for use as banking rooms was leased for a term of 20 years by a bank and, after occupying premises as a bank for 17 years lessee moved into a new bank building removing all its bank furniture from leased premises, and later sublet such premises for use and occupancy as a fruit store and vegetable market, which use was for a purpose materially different from that for which premises had been usually employed and for which they were constructed and adapted, such sub-letting was a breach of lessee's implied contract not to put premises to use materially different from that in which they were usually employed, to which they were adapted, and for which they were constructed.

2. Mere breach of covenant contained in a lease does not, in absence of special stipulation, work a forfeiture of term, or give landlord right of entry, unless it is one that disaffirms or impugns title of lessor and tends to defeat reversion.

3. Breach of covenant of a lease is ground for forfeiture, but forfeiture arises from lessor's act, who has option either to claim or waive forfeiture, and, if he would treat breach as such, he must promptly evince his purpose by some distinct and positive act.

4. Where lessee had breached express covenant in lease for good husbandry, and implied covenant that lessee would not use premises in materially different manner from that in which they were usually employed, to which they were adapted, and for which they were constructed, as re-entry clause in lease applied only to stipulations contained in lease, implied conditions were excluded, re-entry could only be made for breach of covenant of good husbandry, and without such re-entry, or its legal equivalent, lease was not terminated.

5. An action of ejectment under G. L. 2146 is statutory in its nature, and right to maintain it, depends upon showing of facts, which bring case within statute.

6. Rights of lessor under re-entry clause in lease are stricti juris, and are no more than covenant relating thereto gives and lessor cannot re-enter for one reason, and, when that fails, justify re-entry by assigning another breach which she did not act upon or claim at time.

7. Supreme Court will not, for purpose of reversing a judgment read into finding of facts something which is not there, and which, is not a necessary inference from facts found.

8. Supreme Court will not presume that trial court drew any inference from facts found, when to do so would result in a reversal.

9. In ACTION OF CONTRACT to recover for violation of certain covenants in lease, where record failed to show re-entry and termination of lease, plaintiff could not recover either fair rental value of premises, or entire rent received by defendant from sublessee during period after covenant was broken, and judgment in lessor's favor for nominal damages was error.

10. Where record shows that lower court should have rendered judgment for defendant, ordinarily Supreme Court will render judgment court below should have rendered, but where, in argument, an aspect of case is suggested, not before Supreme Court on questions presented, which might enable a recovery case may be remanded for further proceedings to end that no injustice may be done.

ACTION OF CONTRACT to recover for violation of certain covenants, express and implied, contained in lease of certain premises. Pleas, general issue, and res adjudicata. Trial by court at the September Term, 1928, Rutland County, Thompson, J., presiding. Judgment for plaintiff to recover one cent damages and costs. Both plaintiff and defendant excepted. The opinion states the case. Reversed and remanded.

Judgment reversed, and cause remanded.

Fenton, Wing & Morse for the plaintiff.

Lawrence & Stafford for the defendant.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

MOULTON

This is an action in contract, brought to recover for the violation of certain covenants, express and implied contained in a lease of real estate. Trial was by court, and after finding the facts, judgment was rendered for the plaintiff to recover one cent damages and costs. Both parties excepted.

The following appears in the finding of facts: The plaintiff is the owner of a business block in the city of Rutland, known as the Mead Building. It was erected in 1907 by her father, Dr. John A. Mead from whose estate she acquired title. A part of the building was specially constructed for use as banking rooms for the defendant bank, and according to its suggestions. The premises consisted of a banking room, in the front, with a vault, a directors' room, in the rear, a stairway and closets. On September 1, 1907, the defendant entered into occupancy, and on January 29, 1908, a lease of the premises was executed by Dr. Mead and the defendant to run for the term of twenty years from and after September 1, 1907, to the defendant, its successors and assigns, at an annual rent of $ 1,100, payable in equal monthly installments. The lease contained a covenant on the part of the defendant to use and manage the premises in a good and husbandlike manner, and a clause providing for re-entry and re-possession upon a failure to perform any of the conditions of the lease.

The defendant continued to occupy the rooms under the lease until about October 1, 1924, when it moved into a new bank building which it had constructed, and at the same time removed all of its banking furniture from the premises. From October 1, 1924, until about August 1, 1925, the rooms were occasionally occupied for short periods for food and rummage sales and as a real estate office. On or about the latter date, one Joseph Segale went into possession as a sub-lessee of the defendant, and until September 1, 1927, used and occupied the premises as a fruit and vegetable store, paying to the defendant rent of $ 125 a month. Segale turned the front, or banking room, into a sales and display room, and racks or shelves were built on the south and north sides of the room, and in front of the building, and fruit and vegetables were stored and displayed in the window. Additional lighting fixtures were installed, and the wiring for them was run through conduits which were fastened to the woodwork by nails or cleats. The directors' room was used for the storage of boxes and papers, and for wrapping and unwrapping of fruit.

Some time before the entry of Segale into possession, the plaintiff's husband, who was her agent in looking after the building, learned of the contemplated sub-lease and protested in writing against the use of the premises for any purpose inconsistent with, or not incidental to, a banking business. The installments of rent were accepted by plaintiff up to August 1, 1925; thereafter, although the defendant regularly sent monthly checks, they were not accepted, but were returned.

The use of the premises for a fruit and vegetable market was for a purpose materially different from that for which they had been usually employed, and for which they had been constructed and were adapted, and the sub-letting to Segale for such purpose and use was a breach of the defendant's implied contract that it would not put the premises to a use materially different from that in which they were usually employed, to which they were adapted, and for which they were constructed. During the occupation of Segale, the premises were not used and managed in a good husbandlike manner as intended by the terms of the lease, and they were damaged by this breach of the lease. On or about September 1, 1927, the parties agreed as to the cost of restoring the rooms to as good condition as they were in when Segale took possession, and the agreed amount was paid by the defendant, but in all other respects the rights of the parties were left unaffected. The fair rental value, between August 1, 1925, and September 1, 1927, was $ 2,000 a year.

After Segale took possession, the plaintiff brought suit in ejectment under G. L. 2146, to recover possession of the premises, but the action was dismissed in this Court. See Hinsman v. Marble...