J.C. Penney Co. v. Birrell

• Decision Date: 30 April 1934
• Docket Number: 13296.
• Citation: 32 P.2d 805,95 Colo. 59
• Parties: J. C. PENNEY CO. v. BIRRELL.
• Court: Colorado Supreme Court

32 P.2d 805

95 Colo. 59

J. C. PENNEY CO. v. BIRRELL.

No. 13296.

Supreme Court of Colorado

April 30, 1934

In Department.

Error to District Court, Phillips County; Arlington Taylor, Judge.

Action by the J. C. Penney Company against J. D. Birrell, in which defendant filed a cross-complaint. Judgment for defendant and plaintiff brings error.

Affirmed.

Ben L. Garman, of Holyoke, for plaintiff in error.

Coen &amp Sauter, of Sterling, for defendant in error.

HOLLAND Justice.

The parties appear here in the same order as in the trial court and will be referred to as plaintiff and defendant.

The plaintiff was the lessee of certain storeroom premises in Haxtun, Colo., and operated a merchandise business therein under a lease dated July 31, 1929, and the defendant operated a grocery in the rear of same room occupied by plaintiff, and had so operated said grocery for several years Before, when other parties occupied the front part of said room. Although it appeared that the grocery was operated as another department of the front main store, it in fact was operated independently. On November 22, 1929, at plaintiff's request, defendant signed a five-year sublease on the rear part of the room--being a space approximately 24 feet by 64 feet--with all the appurtenances, rights, privileges, and easements thereunto belonging or appertaining, for which defendant was to pay $65 per month. Shortly thereafter, plaintiff caused its constructionman to make plans for a partition to separate the space leased to defendant, from the business of plaintiff, which had been theretofore separated by fixtures, with wire netting extending to the ceiling, with doorways between the two parts of the room or the two businesses. When a blueprint of the partition plans was placed in the hands of a local contractor, defendant discovered that the plans provided for the closing up of the doorways, and on December 24, 1929, protested by letter to plaintiff, being Defendant's Exhibit 3, saying therein that it was the 'impression and satisfaction, that I had in mind, that the entrance would be left open when I signed the lease * * *,' and objected on account of business reasons, and that his part of the room or store would be harder to heat, also that the toilet and lavatory accommodations would be cut off. The partition was constructed solidly, but a door was put in and used for about a month, when some new fixtures were put in plaintiff's store, and plaintiff closed the door leading into defendant's store, by placing he fixtures against the door. Defendant continued to protest and refused to pay rent. On May 5, 1930, plaintiff notified defendant that unless he paid rentals according to the provisions of the lease, that plaintiff would resort to its remedies under the 'forfeiture for failure to pay rent' clause of the lease. Defendant thereafter paid rents under protest, as marked on the checks used in payment. Defendant then looked for other quarters, but found none available in the business section. He then bought a lot and told plaintiff's manager that he was going to put up his own building, which he did after some delay occasioned by building difficulties and weather conditions. This delay, caused by financing, building, and weather difficulties, extended from March, 1930, to July 28, 1931. Rent was paid to May, 1931, but defendant refused payment of rent for June and July.

Plaintiff filed complaint for rentals due under the lease, made a part thereof, for four months, June, July, August and September, 1931, and later filed a supplemental complaint for all rents accrued to May, 1932. Defendant answered, generally to the effect that plaintiff agreed that he could have the...