Waldorf Sys., Inc. v. Dawson
| Decision Date | 13 January 1928 |
| Docket Number | No. 6461.,6461. |
| Parties | WALDORF SYSTEM, Inc. v. DAWSON. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; J. Jerome Hahn, Judge.
Action by the Waldorf System, Inc., against Emma J. Dawson. Verdict for plaintiff, and defendant brings exception. Exception overruled, and case remitted, with directions.
Frederick W. O'Connell, Charles E. Tilley, and Swan, Keeney & Smith, all of Providence, for plaintiff.
Benjamin W. Grim, of Providence, for defendant.
This was an action of trespass and ejectment to recover the possession of a certain store on Exchange Place in Providence. The basis of the action was alleged breach of covenant in a written lease by nonpayment of the stipulated rent for a period of more than 15 days after it became due. G. L. 1923, c. 385, § 7. The case was tried before a jury, and the superior court directed a verdict for plaintiff, to which action the defendant is here on exception.
The case sought possession of the store held by defendant under a written lease from plaintiff calling for payment monthly in advance of a rental of $583.34.
There is no dispute that the rent for four months prior to May, 1927, was unpaid; that due notice was given of the termination of the lease because of breach of covenant to pay rent; that due notice to quit on June 1 was served upon defendant, and that plaintiff duly entered upon the premises to take possession. At the trial, however, plaintiff's sole reliance was upon the statute for failure to pay the May rent.
The lease contained a covenant that plaintiff should furnish a "reasonable amount of heat for the demised premises." The only defense made was that plaintiff had not sufficiently heated the store. There was no claim that the lack of heat was equivalent to an eviction, and the evidence showed that defendant uninterruptedly did business in the store during the winter of 1926-27, although there was testimony that the store was uncomfortably cold.
The question involved was whether the covenant to pay rent was independent of that to furnish heat. While defendant asserted in the lower court that she was not bound to pay the rent, in the absence of the furnishing by plaintiff of sufficient heat, she now admits that she can find no authority to sustain this position. We think the lower court correctly ruled that the covenants were independent. The fact that the monthly rental was payable in advance so indicates. Trenkmann v. Schneider, 26 Misc. Rep....
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