Bernard v. Renard

ANGELLOTTI, C. J.

This is an action to recover a judgment for money alleged to be due as rent under the terms of a written lease, the defendants being the trustees of the creditors of the lessee corporation (a dissolved corporation), and the sureties on the bond given by the lessee for the payment of the stipulated rent and the observance of the other covenants of the lease. The cause was tried with a jury, which returned a verdict for plaintiff for seven thousand five hundred dollars. Defendants appeal from the judgment and from an order denying their motion for a new trial.

The action was for rents at nine hundred dollars per month for the period commencing November 14, 1908, and ending June 14, 1910. The lease was one dated March 6, 1907, of a lot of land and a building to be erected by the lessor thereon, for the term of ten years, said term to begin when the building was completed and ready for occupancy, at nine hundred dollars per month for the first five years, and one thousand dollars per month, for the second five years. Before the completion of the building, and in February, 1908, differences arose between the parties. During that month a formal notice of rescission signed by the lessee was left on the premises and received by the lessor. It stated substantially that the lessee, by reason of the fact that it was induced to enter the lease by certain alleged false and fraudulent representations, and also because the building had not been completed as soon as promised, elected to rescind the lease, offered to restore all property in said building and premises, and demanded that the lease be rescinded and surrendered. The lessor on February 17, 1908, sent to the lessee the following notice, viz.: “Your notice of rescission I have received and the only answer I have to make to it is that the rescission of a lease requires the action

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of all parties thereto or the judgment of a competent court. Your building will be ready for occupancy within the next forty days.” On May 14, 1908, the lessor notified the lessee that the building was completed and tendered possession thereof and demanded payment of the first month’s rent, and the lessee refused to accept it or any portion thereof, or to pay any rent under the lease. This apparently ended the communications between the parties until the commencement of this action over four years later, November 14, 1912. The lessee never went into possession of the premises and never paid any rent.