Marcus. v. Great Am. Tea Co., 7892.

• Citation: 200 A. 534
• Decision Date: 08 July 1938
• Docket Number: No. 7892.,7892.
• Parties: MARCUS et al. v. GREAT AMERICAN TEA CO.
• Court: United States State Supreme Court of Rhode Island

200 A. 534

MARCUS et al.

v. GREAT AMERICAN TEA CO.

No. 7892.

Supreme Court of Rhode Island.

July 8, 1938.

Exceptions from Superior Court, Providence and Bristol Counties; Leonidas Pouliot, Jr., Judge.

Action of covenant on a lease for rent by Joseph Marcus and others against the Great American Tea Company. Verdict for plaintiff, and defendant brings exceptions.

Exceptions sustained.

McGovern & Slattery, of Providence, for plaintiff. Kingsley L. Bennett, of Providence, for defendant.

MOSS, Justice.

>

This is an action of covenant, on a lease under seal from the plaintiffs to the defendant, to recover rent for the month of March, 1935, at the stipulated rate of $85 per month. The trial by jury in the superior court resulted in a verdict for the plaintiff for the above amount plus accrued interest; and a motion by the defendant, on the usual grounds, for a new-trial was denied. The case is now before us on exceptions taken by the defendant to that denial, to the refusal of the trial justice to direct a verdict for the defendant, to his refusal to give any of a series of instructions to the jury which were requested by the defendant, to the giving of certain instructions to the jury and to many rulings on the admission of evidence.

The lease covered the entire second floor of a building on North Main street in the city of Providence for the term of two years beginning July 1, 1934, and the annual rental was $2040 in monthly payments of $85, payable in advance, which the defendant covenanted to pay accordingly. Among the stipulations agreed to by the parties in the lease were the following: "If the leased premises be damaged by fire, or other casualty, they shall be promptly repaired by the lessor, and an abatement shall be made from the rent corresponding with the time during which and the extent to which they may not be used by the lessee after damage occurring as aforesaid, and before repair * * *. In the event of a partial destruction of the said premises such as to render them unsuitable for the business of the lessee, then in its option this lease shall cease and come to an end, and the lessee shall be liable for the rent only up to the time of such partial destruction of the leased premises."

The defendant went into occupation of the premises under the lease at the beginning of the term and used them in its business of selling dry groceries and canned goods until Sunday, February 3, 1935, when the premises were so badly damaged by fire that they became entirely untenantable. This was one of three branch stores maintained by the defendant in New England, the other two being in Worcester and Hartford. The defendant also maintained many branches in other parts of the country and its main offices were in the city of New York. A Mr. White was its sales manager for the New England stores and lived in Worcester, visiting the Providence branch about twice a week. A Mr. Johnson was his superior, being superintendent over the same branches. A Mr. Abernathy was the manager of the Providence branch.

The day of the fire Mr. White, having been notified of it by telephone, came down from Worcester and examined the premises. He also then talked about it over the telephone with Mr. Johnson, whom he located in New York. The next morning, when the main offices of the defendant were : open in New York, he talked from Worcester over the telephone with a Mr. Hill, one of his superiors at the main offices, about the fire. He later on the same day came to Providence again; and he and Mr. Abernathy called to see Joseph Marcus, one of the plaintiffs, in a building owned by the latter across North Main street from the leased premises.

They talked with him about getting other premises, where the defendant's business in Providence could be carried on without serious interruption. He took them to a store owned by a Mr. Charren at 165 North Main street, a little south of the leased premises and on the same side of the street. The space available there was about half that of the leased premises; but White and Abernathy said that it would answer the purpose. Marcus then hired it for that purpose and paid Charren $40 for one month's rent for it, and later paid a second month's rent of the same amount. So far as the evidence shows, nothing was said, then or later, as to whether or not the defendant was to reimburse Marcus.

Besides the evidence of the facts above stated, the only evidence which is relied on as throwing light on the question whether there was an agreement between Marcus for the plaintiffs and White for the defendant that the defendant should continue to pay rent under the lease, while the leased premises were being made tenantable, was the testimony of White that he made no arrangements with Marcus as to the payment of the rent for the Charren store and had not the slightest idea who was to pay it, and the following from the testimony of Marcus, with reference to White:

"Q. What was said about what he would do about the lease? A. He will stay there until the old premises is put in shape, where the fire was; and he is going to stay there.

"Q. Stay there until the old premises were put in shape? A. Yes.

"Q. What would he do after that? A. Go back in the place where they were before.

"Q. That is what Mr. White said? A. Yes, sir."

When the Charren store was hired, the defendant promptly removed its property from the leased premises and went into occupation of that store, at 165 North Main street, and continued to occupy it until the 8th of the next month, when it removed all its property there to another store, on Charles street in Providence. It never afterwards had anything to do with either of...