Whitcomb v. Brant

• Decision Date: 25 February 1908
• Parties: WHITCOMB v. BRANT et al.
• Court: New Jersey Supreme Court

68 A. 1102

76 N.J.L. 201

WHITCOMB

v. BRANT et al.

Supreme Court of New Jersey.

Feb. 25, 1908.

Error to Circuit Court, Essex County.

Action by James A. Whitcomb against R. Russell Brant and others. Plaintiff was nonsuited, and he brings error. Affirmed.

Argued November term, 1907, before GUMMERE, C. J., and BERGEN, J.

S. B. Ferriss, for plaintiff in error. Guild, Lum & Tamblyn, for defendants in error.

BERGEN, J. The defendant in error leased to the plaintiff in error, for the term of 10 years, a building to be used as a restaurant. The lease contained the following stipulation, viz.: "It is expressly understood and agreed that the party of the second part may make alterations and improvements to said premises subject to the approval of the plans by the party of the first part." The lessee undertook to make alterations without the approval of the plans by the lessor. They were not made because the landlord objected to the proposed changes, whereupon the tenant refused rent, claiming he had been evicted. The landlord distrained, and the tenant replevied the goods which were not reclaimed. On the trial the plaintiff was nonsuited.

The first assignment alleges for error that the nonsuit should not have been granted, because "it appearing in evidence, according to law that the plaintiff was evicted from the premises, was not permitted to occupy them as a restaurant, and that the plaintiff had the right to make the reasonable improvements referred to in the evidence."

The second assignment is substantially the same as the first.

The third assignment challenges the correctness of the nonsuit because it appeared that the distress was illegal because the value of the goods distrained was in excess of the lawful amount. The first question is whether the refusal of the landlord to consent to the alterations proposed by the tenant amounts to an eviction. Our conclusion is that it does not. There is no express agreement in this lease that the building was to be made suitable for the business of the tenant, and it is well settled that none will be implied. Murray v. Albertson, 50 N. J. Law, 167. 13 Atl. 394, 7 Am. St. Rep. 787. By the written agreement between the parties the landlord leased the first floor and basement under it of a store building, and the tenant agreed that he would not relet or underlet, nor assign the lease or use or permit any part of the premises to be used for any other purpose than a restaurant or lunchroom without the written...