Dimas v. Irvine

ASHBUBN, J. Defendant appeals from the judgment and attempts to appeal from an order denying her motion for new trial. Plaintiff takes a cross-appeal from the judgment. The court awarded plaintiff $9,786.50 as damages for wrongful eviction from premises held by him under a sublease from defendant Irvine.

Defendant had leased certain premises from James R. Palmer and Carrie Palmer for a term ending on December 31, 1971, at a rental of $200 a month. Defendant subleased a portion of the premises to plaintiff at the rate of $90 a month for a term beginning January 27, 1948, and ending on December 30, 1971, the sublessee to pay the taxes upon improvements placed upon the subleased parcel. Plaintiff was required by his lease to erect a building upon the premises, which would belong to the landowner at the end of the term. He erected a restaurant building at a cost of $7,000, also installed fixtures and restaurant equipment at an additional outlay of $12,000. In 1951 plaintiff subleased to Pete Buzas for a two-year term beginning November 16, 1951, at a rental of $250 a month for the building and all its equipment. On or about May 5, 1952, the Palmers served upon defendant as their lessee, and plaintiff as sublessee, a notice of default upon the main lease in that the rent due on May 1, 1952, in the sum of $200 was unpaid, and taxes amounting to $481.83 were delinquent. Said notice required payment of said items within 30 days, failing which the lease would be terminated and the landlord would reenter the premises. Mrs. Irvine made no payments and the lease was terminated, the Palmers taking possession on June 3, 1952. After receiving his notice of default plaintiff went to see defendant several times and offered to take over any deal she could make with Palmer. But she was trying to get a lower rent and no deal with Palmer was ever made. When plaintiff offered her his rent for May defendant said, “I am giving up my lease”; “I am defaulting in my lease”; and “I can’t take this check because I am defaulting in my lease.” Plaintiff also went to see Mr. Palmer who said that Mrs. Irvine had defaulted and if the sums due were not paid by June 3rd, “you all have to move out.” After Palmer had sent plaintiff to see his attorney an arrangement was made by which plaintiff rented from Palmer [80]on a month to month basis the same portion of the premises which he had held under the sublease, but at a rental of $110 a month; this lasted until September when Buzas, who was in possession, was required to surrender the premises. Plaintiff then moved his fixtures and restaurant equipment to another location, but the building had reverted to the Palmers and remained on the premises.