Manchester Amusement Co. v. Conn

• Decision Date: 08 November 1922
• Docket Number: No. 1822.,1822.
• Citation: 119 A. 69
• Parties: MANCHESTER AMUSEMENT CO. v. CONN.
• Court: New Hampshire Supreme Court

119 A. 69

MANCHESTER AMUSEMENT CO.

v. CONN.

No. 1822.

Supreme Court of New Hampshire. Merrimack.

Nov. 8, 1922.

Exceptions from Superior Court, Merrimack County; Marble, Judge.

Bill by the Manchester Amusement Company against Jacob Conn. Decree of dismissal, and plaintiff excepts. Exceptions overruled, and case returned to the superior court with instructions.

This was a bill in equity to enforce specific performance of a covenant to renew a lease of defendant's theater to the plaintiff. Decree for the defendant dismissing the bill, ordering the plaintiff to vacate the premises, and awarding damages against the plaintiff for breach of covenant. Transferred on plaintiff's exceptions to the decree, to the admission of evidence, and to the denial of the plaintiff's motions for findings of fact and rulings of law, for a further hearing and for a new trial. The competency of evidence under a pending motion for rehearing as to the amount of damages was reserved without ruling, subject to the plaintiff's exception. The facts appear in the opinion.

Warren, Howe & Wilson and De Witt C. Howe, all of Manchester, and John McNeil Stark, of Concord, for plaintiff.

Robert W. Upton, of Concord, for defendant.

SNOW, J. In 1915, the defendant let to the plaintiff for a period of five years, expiring November 22, 1920, the Star Theater in Concord by a written lease containing an option to purchase, the ninth paragraph of which provided:

"The said lessor further covenants with the said lessee that if the said lessee shall be desirous of taking a further lease of the said premises for the term of five years from the expiration of the term hereby granted,* * * and of such desire, shall, prior to the expiration of the said lastmentioned term, give to the said lessor thirty days' notice in writing, and shall observe and perform all the provisions of this lease by the said lessee to be observed and performed, then the said lessor shall forthwith execute and deliver to the said lessee a further lease of the said premises for the term of five years.* * * "

On August 26, 1920, the plaintiff gave notice of its desire to renew, and on September 14 following filed this bill, alleging the defendant's failure seasonably to execute a new lease, and praying that the defendant be ordered to do so.

The issue raised by the defendant's answer, so far as relied upon, was the failure of the plaintiff to observe and perform the provisions of the third paragraph of the lease, which provided:

"The said lessee further covenants with the said lessor that it will keep the interior and exterior of said theater in repair, with the exception of the roof; that it will keep the said premises, excepting said roof, in as good order and condition, reasonable use and wearing thereof, fire and other unavoidable casualties excepted, as the same are, or may be put into by the said lessor; that it will pay all water rates assessed against the said premises; that it will not make or suffer any waste thereof.

In addition to a general denial of the facts alleged in defendant's answer, plaintiff set forth that "the issues as to waste and other breaches of said lease up to and including the 28th day of February, 1919, have been heretofore adjudicated in this court," The adjudication relied upon was a judgment for this plaintiff upon a writ of entry brought on that date by this defendant against the plaintiff to recover possession of the leased premises on the grounds (1) that the lessee corporation had been dissolved and (2) that it had failed to protect the lessor by liability insurance. Questions of law there raised are reported in Conn v. Manchester Amusement Co., 79 N. H. 450. 111 Atl. 339. The plaintiff con cedes that default of the covenant to repair was not relied upon in that case, but claims that the judgment was conclusive against the defendant upon all issues' which might have been tried in that suit. It is unnecessary to consider this contention, since it does not appear that the decree of the court in the present case was predicated in whole or in part upon defaults occurring prior to the effective date of such adjudication.

The theater was new at the date of the lease. Defendant's evidence in the present case tended to show that the condition of the theater had been allowed to deteriorate for want of proper care and needed repairs. The court took a view at the hearing when the conditions were about the same as at the expiration of the lease. In addition to general dirty and unsanitary conditions then existing, the evidence covered specific instances of default, such as broken plaster improperly patched, steel ceilings mutilated, and in places rusting for want of paint, parts of covering and appliances of heater broken and missing, walls and ceilings discolored from dirt unnecessarily allowed to accumulate upon floors, and from the use of improper fuel. No repairs of moment had been made during the term.

Although the plaintiff had the burden of proving the performance of its own covenant upon which its right of renewal was conditioned, and although it relied for its proof upon the adjudication based upon conditions in February, 1919, it submitted no evidence that the conditions of ill repair disclosed by the defendant's evidence, and by the view, existed prior to the adjudication. It does not appear that conditions negligible in February, 1919, might not have become intolerable 20 months later in November, 1920.

It follows from the foregoing that the plaintiff's exception to the admission of testimony with respect to the condition of the theater at the time of the trial and its cause, on the ground that the issue had been raised and determined upon the writ of entry of February 28, 1919, was manifestly without merit.

The plaintiff objected to the testimony of two expert builders, one of whom had examined the theater two days after the expiration of the lease, and the other at the time of the trial, as to the estimated cost of putting the theater in good condition and repairupon the ground that the terms of the lease did not impose such a requirement upon the plaintiff. The evidence was admitted de bene subject to plaintiff's exception. As the court was not asked to rule as to the construction of the lease, or upon the application of the evidence, the exception does not avail the plaintiff if the evidence was material upon any phase of the case. It cannot be said that the cost of putting the theater in good condition and repair was not competent and useful in computing the damages to the defendant arising from plaintiff's failure to keep the theater in the state of repair and condition that it was in on February 28, 1919, the date when the alleged adjudication became effective. The question, if any, of remoteness of the evidence was for the trial court. The decisive fact, bearing on plaintiff's exception is that it does not appear that the court used the evidence as a measure of the defendant's rights.

The plaintiff took no other exceptions during the course of the trial, and did not move for judgment before the case was submitted. No request for special findings of fact or rulings thereon was made unless it was contained in a document entitled "plaintiff's brief," filed by plaintiff after the hearing in response to the court's request for briefs. The plaintiff there stated in argumentative form "the plaintiff submits upon all the evidence the court must find that it kept the interior and exterior of the theater in repair," etc...