Gannett v. Albree

Ames, J. By the terms of the lease, the lessor had a right to insist that the house should be occupied as a residence, and used 11 strictly as a private dwelling,” and not for any !< public or objectionable purpose.” When the lease was assigned tó the plaintiff, he took it subject to all the covenants which it reserved or contained, to be kept and fulfilled on the part of tire original lessee. The consent of the lessor that the plaintiff might occupy and use the house himself, in connection with his school for young ladies, cannot fairly be construed as a general or absolute waiver of the limitations as to the nature of the occupation. It is not the case of a condition which, when once dispensed with, is discharged for all purposes, and cannot be revived, but of a covenant which can be modified by consent. The lessor might be willing to consider such a use of the house as not an entire departure from its intended character of a private dwelling, and not an appropriation to a public or objectionable purpose. But its conversion into a public boarding-house is an entirely different matter. In making the original lease, with its restrictions, the lessor may have supposed that such a use world subject the house to greater wear and tear, or to greater depreciation in value, or require more frequent repairs or increase the rate of insurance. All these considerations may have had their influence upon her mind as to the rate of the rent 375 and the length of the term. The use of the house as a boarding-house is in violation, of the terms of the lease, and would subject it to very different conditions. For that reason, the plaintiff is not entitled to a decree for the specific performance of the contract for its renewal. Bill dismissed, with costs.