Tober's Inc. v. Portsmouth Housing Authority
| Decision Date | 30 November 1976 |
| Docket Number | No. 7274,7274 |
| Citation | 116 N.H. 660,367 A.2d 603 |
| Parties | TOBER'S INCORPORATED v. PORTSMOUTH HOUSING AUTHORITY. |
| Court | New Hampshire Supreme Court |
Wadleigh, Starr, Peters, Dunn & Kohls and James S. Yakovakis, Manchester, for plaintiff.
Gerald F. Giles and Francis J. Riordan, Portsmouth, for defendant.
The plaintiff seeks to recover for alleged loss of business profits for the period August 1970 to August 1972, allegedly caused by negligent misrepresentations of the Portsmouth Housing Authority. Trial by jury resulted in a verdict for the plaintiff in the sum of $71,000. The defendant excepted to denial of its motions for nonsuit, directed verdict, and to set aside the verdict and to certain instructions to the jury and the denial of certain requests for instructions. The questions of law presented by defendant's exceptions were transferred by Cann, J.
The defendant questions the sufficiency of the complaint to state a cause of action, and the sufficiency of the evidence to support the verdict. From the evidence it appears that in 1963 the defendant Authority, a public corporation organized under the provisions of RSA ch. 203, applied to the Department of Housing and Urban Development for funds to be used in the planning and preparation of the so-called Vaughn Street urban renewal project. See 42 U.S.C.A. §§ 1453, 3532. The project called for extensive redevelopment of approximately thirty acres in and adjacent to the Portsmouth business district. The plaintiff corporation occupied a building situated on Congress Street on one of the parcels scheduled for redevelopment. At all pertinent times the stock of Tober's, Inc., was held by Irving Tober, David Tober, Edward Tober, and Lee Tober Furman as guardian for Robert and Stephen Tober, minor children. Although in slightly different proportions, the same four individuals also owned the land and building in which the business of Tober's, Inc., was housed.
On December 1, 1969, the Authority entered into a site preparation contract with the Seaward Construction Company which called for the installation of streets, sidewalks, and utilities including a street which would intersect Congress Street at a point adjoining the Tober building. It was then fully anticipated that site preparation would require demolition of various structures, including the building owned by the Tobers and occupied by Tober's, Inc. From the outset, representatives of the Authority met with the Tobers to discuss relocation, both temporary and permanent. The evidence on this point is conflicting, and inconclusive, but it is apparent that the parties were never able to reach an agreement satisfactory to the Tobers for relocation within the redevelopment project.
On February 5, 1970, the Authority brought a petition against Irving Tober, David Tober, Edward Tober and Lee Tober Furman to condemn the fee. The Tobers have not disputed the necessity or desirability of the urban renewal project, nor do they contest the right of the Authority to proceed with condemnation. See Velishka v. Nashua, 99 N.H. 161, 106 A.2d 571, 44 A.L.R.2d 1406 (1954); Club Joliet, Inc. v. Manchester, 110 N.H. 172, 262 A.2d 844 (1970). Through counsel, they waived hearing on the condemnation petition and agreed to a decree vesting title in the Authority with right of immediate entry and possession. On May 20, 1970, pursuant to this agreement, the Authority deposited $70,000 in court and was granted the right to enter upon the property and to demolish the building. Thereupon Tober's, Inc., became a tenant at will of the Authority.
On May 21, 1970, the Authority issued the standard 90-day notice to vacate required by federal law specifying that the property was 'scheduled for demolition.' At the same time, the Authority advised the Tobers of its policy to grant liberal extensions, from month to month in 30-day increments, until such time as demolition should be imminent, but that it could not guarantee more than one 30-day extension at any one time.
Having just previously placed orders for future delivery of merchandise, the plaintiff decided to cancel its orders and to liquidate its business. On July 14, 1970, it notified the Authority of its intention to quit the premises on or before July 31, 1970. It ceased business during the latter part of July 1970; and finally vacated the premises on August 31, 1970. The plaintiff did not reestablish its business until August 1972 when it did so at a point some five miles from its original location.
The case was tried upon a declaration alleging that 'the defendant had an obligation and duty to allow the plaintiff to continue to use said premises . . . until such time as it was necessary for the defendant to put said property to a use other than as a retail store,' and that the defendant 'did negligently misrepresent to the plaintiff that said premises were to be demolished . . .' and that 'the plaintiff relying upon the statements of the defendant did sell all its merchandise and fixtures . . ..' and 'through the defendant's negligent misrepresentation as aforesaid . . . did suffer' damages. The record contains no evidence that the defendant was under an obligation or duty to allow the plaintiff to remain on the premises until it became necessary to put the building to a different use. The representations of an August 1966 letter from the assistant director of the Authority, addressed to 'all occupants', and stating that 'occupants will not be required to move until a suitable place is available' and that 'property owners may remain as tenants even after their property is acquired' must be construed in light of intervening circumstances by the time the notice to vacate was given to the plaintiff on May 21, 1970. In December 1969 demolition of the Tober building was contemplated by the project site preparation contract. Admittedly no guarantee was given in May 1970 that the plaintiff would not be required to vacate after 120 days from the date of notice. It was later determined that the building could be permitted to stand, but it was eventually demolished.
The trial proceeded, not on the theory of a duty to permit the plaintiff to remain in possession until the last possible moment, but on the basis of...
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University System of New Hampshire v. US Gypsum
...such information to its detriment. Ingaharro v. Blanchette, 122 N.H. 54, 57, 440 A.2d 445 (1982); Tober's, Inc. v. Portsmouth Housing Auth., 116 N.H. 660, 663, 367 A.2d 603, 606 (1976). Defendants contend that USNH's misrepresentation count should be dismissed because USNH fails to show tha......
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