J. B. Hill Co. v. Pinque

SLOSS, J.

This action was brought to recover the possession of certain premises, together with damages. The complaint was in two counts. The first set up, in ordinary form, a cause of action in ejectment. The second alleged that the premises, consisting of a storeroom, had been held by the defendant Pinque under a written lease from one Keosheyan, and that the plaintiff, who,had acquired the interest of Keosheyan, had elected, under the terms of the lease, to terminate it, and forfeit the, rights of the defendant.

Judgment went in favor of the plaintiff for the recovery of the premises, for three hundred dollars, the value of the' use and occupation, and for damages in the further sum of $509. The defendant, Pinque, appeals.

The lease from Keosheyan to Pinque was dated February 1, 1915, and ran for a term of nine years, at a monthly rental of one hundred dollars. It contained the following provisions material to this appeal:

[761]

“That said storeroom is to be used by lessee for the wholesale, retail, and commission fruit and vegetable business in all its branches. . . .

“It is further agreed that in the event lessee desires to make changes or improvement for the convenience of any business she desires to conduct, that she has the right so to do at her own expense, except lessee agrees not to change or conduct any business, like in kind to business in lessor’s property at time of change, or conflicts with any lease in force at date hereof, between lessor and other persons, or open up shoe or clothing store within 3 months from March 1st, 1915.

“It is further understood and agreed in the event lessee shall make default in the payment of rent or refuse to comply with the terms, covenants and conditions of this lease on her part to be kept and performed, then said lessor reserves the right to terminate this lease and oust and eject lessee therefrom and that all moneys theretofore paid shall be retained by lessor as damages and rental on said premises.”

The second count sets up a forfeiture of the lease on the ground of nonpayment of rent. It also alleges that plaintiff has been damaged in the sum of two thousand dollars by the defendant’s failure to keep the premises in good repair, by her occupation of them as an automobile garage, and by her removal of a portion of the foundation of the building, thereby causing the floor to settle, and injuring and damaging the premises. The only ground of forfeiture asserted in the complaint is the nonpayment of rent. The other acts charged against the tenant are set up merely as a basis for the recovery of damages. They could not, in any event, justify a forfeiture. There is neither allegation, proof, nor finding that the tenant was under any obligation to repair. The defendant had the right, as we shall show hereafter, to use the premises as a garage. The commission of waste is not a ground of forfeiture, the landlord’s remedy being an action for damages.