Galt v. Murphy

PARKER, J., pro tem.

This is an appeal from an order granting defendants’ motion for a nonsuit and judgment therein entered in favor of defendants and against plaintiffs.

The action was brought to recover damages suffered by plaintiffs through defendants’ breach of their contract of lease, to wit, failure to give possession.

The defendants answered jointly though at the trial and on the appeal defendant Paddon appears through separate counsel.

The facts as appearing here and in the court below follow: In December of 1922 or thereabouts one Thomas L. Ricks, an agent or representative of a real estate firm, called upon Leland S. Murphy, defendant, in search of an apartment house that he might lease for a client. Murphy advised him that he had just such a place as was desired, and thereupon gave to Ricks a statement covering said house, showing what the house could be made to yield and also the amount of rent demanded. Ricks in due time communicated these facts to the plaintiffs in whose interests, it seems, he was endeavoring to find a suitable location. After negotiations and investigation on January 26, 1923, a lease of the premises was prepared and executed by defendant Verne Clarke, as lessor, and plaintiffs, Maude L. Galt and Joseph C. Bianchi, as lessees. The term of the lease was for a period of five years commencing on March 1, 1923, with rent reserved at the rate of $770 per month. This lease further provided that the lessees should execute and deliver to lessor a chattel mortgage upon the furniture as security for the payment of the rent.

On the same date and as a part of the same transaction another agreement was entered into between the parties concerning certain improvements to be made in the premises

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and the sale of furnishings therein. By this latter agreement it was stipulated that the lessor should install elevators and hardwood floors and wall beds, the work to be started within ten days and prosecuted with reasonable diligence. The lessees in this instrument agreed to purchase for the stipulated price of $1,500 the furnishings of the premises therein, at the time, consisting of linoleums, etc. The tenants agreed to deposit with the landlord the sum of $5,000 as an evidence of good faith and as security for the performance on the part of the tenants of all the provisions of the lease. From this amount the first month’s rent of $770 was to be deducted and paid when due, and also the sum of $1,500 covering the price of furnishings. The balance of $2,730 was to be retained by the landlord as security for performance of lease until the tenants gave the landlord a chattel mortgage as security in lieu thereof, such chattel mortgage to be a first lien on complete and adequate furnishings for and installed in not less than fifty-five rooms, and such furnishings to be owned absolutely by tenants free from lien. When the mortgage, as specified, should be executed and delivered then the moneys held as security should be returned to tenants.