Rose v. Congdon., 8779.

• Decision Date: 27 June 1946
• Docket Number: No. 8779.,8779.
• Parties: ROSE v. CONGDON.
• Court: Rhode Island Supreme Court

47 A.2d 857

ROSE

v.CONGDON.

No. 8779.

Supreme Court of Rhode Island.

June 27, 1946.

Exceptions from Superior Court, Providence and Bristol Counties; Patrick P. Curran, Judge.

Action of trespass and ejectment by Edward I. Rose against John Congdon. The action was heard in the superior court by a justice sitting without a jury. The justice rendered a decision for the defendant, and the plaintiff brings an exception.

Exception overruled and cause remitted to superior court for entry of judgment for the defendant on the decision.

Aisenberg & Joslin and Alfred H. Joslin, all of Providence, for plaintiff.

Greenough, Lyman & Cross and Owen P. Reid, all of Providence, for defendant.

BAKER, Justice.

This action of trespass and ejectment was heard in the superior court by a justice sitting without a jury. He rendered a decision for the defendant, and the plaintiff duly prosecuted to this court his bill of exceptions containing the single exception to that decision.

It appears from the evidence that the defendant, by a written lease dated August 3, 1942 and recorded in the records of land evidence in Providence on September 17, 1943, rented from the lessor Cecile Tieman for a term of two years from October 1, 1942 to September 31, 1944, which date the parties agree should be considered as being September 30, 1944, the premises in dispute, namely, a single family dwelling house, with garage, located on Cole avenue in the city of Providence. In the lease the annual rental was set out as being $960 for each year, payable in equal monthly installments of $80. The lease also contained the following provision in respect to the defendant's right to a renewal thereof: ‘with option to renew lease for further term of two years, with adjusted Rent In the event the Lessor does not wish to sell the above property and in case of sale at any time during the term or extension of said lease, the lessee will have option to purchase the property at the same price to be paid by a prospective buyer.’

The lessor, Cecile Tieman, died testate in 1944 prior to the expiration of the above lease, leaving a minor son Robert H. Tieman, then about sixteen years of age, who was apparently her sole heir. In August, 1944 the defendant called the attorney for the estate of Cecile Tieman on the telephone and stated that he wished to exercise his option to renew the lease of the above-described premises and sought advice from the attorney as to what to do. The attorney made some suggestions but in substance stated that the affairs of the estate were in an uncertain condition and that it was not known what disposition would be made of the property in question.

On August 25, 1944 the defendant wrote letters to the executrix of Cecile Tieman's will and to Robert H. Tieman stating in each that he, the defendant, exercised his option to renew or extend the lease for a further term of two years at the same annual rental. Thereafter, on September 11, 1944, the attorney for the Tieman estate wrote the defendant that his lease could not be renewed as it was necessary to sell the property to meet a claim against the estate, and asked the defendant if he desired to make an offer for the premises. Also, on September 16, 1944, the attorney wrote the defendant in regard to showing the premises to prospective purchasers. On September 25, 1944, the attorney and the defendant talked on the telephone about the sale of the property. In this conversation the defendant continued to take the position that he had renewed the lease and that he would resist ejectment proceedings. On September 30, 1944 the two men again discussed over the telephone the sale of the property. The attorney told the defendant that there was a bona fide offer of $10,000 for the premises and expressed a willingness to make a sale to the defendant for that amount. The latter, however, stated that he would not pay that sum, and suggested that if a sale was made it be made subject to his lease. On that same day the defendant wrote the attorney reviewing the travel of the situation and stating that he considered that he held the extended lease for the term expressed in the option.

Thereafter the defendant remained in occupation of the premises and no attempt was then made to eject him therefrom. He continued to pay the same monthly rental to the attorney for Cecile Tieman's estate as he had theretofore paid since her death. These payments were accepted by the attorney without any reservations or conditions. In June, 1945, pursuant to authority obtained from the probate court of the city of Providence, the property was sold to a Mrs. Lovett for $10,000. Thereafter the defendant paid rent to her in the same amount and manner as he had to the attorney for the Tieman estate. In the latter part of August, 1945, the present plaintiff Rose purchased the property from Mrs. Lovett, claiming to have no knowledge of the lease involved herein.

In a short time the plaintiff called on the defendant to ascertain when he would be willing to vacate the premises, and was told by the latter that he was claiming occupancy under the lease as renewed. The plaintiff accepted the regular monthly rent from the defendant without reservation and condition, and apparently continued to do so up to the time the instant writ was issued. After his interview with the defendant the plaintiff, on September 12, 1945, applied to the Office of Price Administration for a certificate so that he could commence ejectment proceedings against the defendant. This certificate was issued October 3, 1945 containing the condition, however, that no action thereunder be taken until December 12, 1945, which was three months after the date of the filing of the plaintiff's application. The plaintiff then retained the attorney who had been representing the Cecile Tieman estate, and on January 15, 1946 said attorney personally served the defendant with a notice...