Exchange Securities Co. v. Rossini

[584]

SHAW, J.

The material facts upon which the trial court rendered judgment for defendants, and from which plaintiff appeals, asserting that it is entitled to judgment upon the findings, are as follows: On the ninth day of May, 1913, Rosie J. Poggi made a written lease of certain real estate to defendants John Rossini and Henry Monighetti. The term of the lease was for a period of five years and the rental reserved therein was twelve thousand five hundred dollars, payable in equal semi-annual installments in advance. The lessees at the time caused a bond, for the faithful performance of their covenants contained in the lease, to be executed to the lessor by Joe Guidotti and Pietro Guidotti, who are joined with them as defendants herein. Among other covenants contained in the lease was one whereby the lessor agreed that if, during the term of the lease, she should receive a

bona fide

offer for the purchase of the property and desire to accept such offer and sell the property, such facts should be communicated to the lessees, who were, for a period of ten days from the service of such notice, given an option to purchase the leased property at the price and upon the teims contained in the offer so received by the lessor, which option to purchase by defendants, unless exercised within the time so specified, should terminate. The lease also contained provisions under which the purchaser, if other than the lessees, might terminate the lease upon notice as therein provided. On March 20, 1915, the lessor, without any notice to the lessees of her intention so to do and in violation of the covenant to give the lessees an opportunity to exercise their option to purchase the property, sold and conveyed the same to the Diamante Gardini Company, to which she assigned and transferred the lease, together with the bond given her for the faithful performance of the terms thereof; and on October 29, 1915, the Diamante Gardini Company conveyed the property to plaintiff herein, to which it likewise assigned the lease and bond aforesaid. On November 8', 1915, the lessees having paid all rent due to said date, abandoned the leased premises without plaintiff’s consent, and thereafter refused to pay any rent for the balance of the term, which expired on May 8, 1918. Thereafter, plaintiff notified the lessees to resume possession of said premises and that, in case of their failure so to do within ten days, plaintiff would rent