Coulter v. Norton

Montgomery, J. In December, 1891, Norton, Griffith & Co. were lessees of the Hurd House property at Jackson, and were making extensive alterations and improvements preparatory to-reopening the hotel. The improvements were completed about February 10, 1892, and the house opened for business. In December, 1891, said lessees sublet to plaintiff “ the ' cigar, and news room and stand in the hotel building now known as the cNew Hurd," being the first room immediately west of the main entrance to said hotel, and the appurtenances thereto, and the right of entrance, to and from the hotel rooms, for the purpose of carrying on said business of cigar selling and news dealing, for the term of five years; said term to commence as soon as said hotel building and said room are [391] ready for occupancy, and said hotel is in actual occupancy and operation.” The lease contained the further provision that— “ The said parties of the first part grant herewith the entiré cigar privilege of the New Hurd to said second party, and agree to and with the said second party that they will sell no cigars in said hotel, or the bar connected therewith, excepting those bought of the said second party, for which they shall pay said second party at the rate of $83 per thousand, said cigars to be of a quality selling at wholesale at regular market price of not less than $55 per thousand; * * * and the said second party does hereby covenant and promise * * * that he will at his own expense, during the continuance of this lease, keep the said premises, and every part thereof, in as good repair, and, at the expiration of the term, yield and deliver up the same in like condition, as when taken, reasonable use and wear thereof and damage by the elements excepted.” There are no other covenants in the lease which are material. A sketch of the premises is given on next page.. After the making of this lease, Norton and Hayden,, the defendants, became owners of the general lease of the Hurd House, and landlords of plaintiff. In November, 1892, the hotel proprietors, finding the business unprofitable, abandoned this floor, and used the upstairs portion for sleeping rooms in connection with another hotel across the street. Plaintiff thereupon abandoned the premises leased by him, and brings suit for damages, claiming a constructive eviction, and an implied covenant to maintain the hotel. 1. It is claimed that this case falls within section 5653, How. Stat., which provides that “no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not.” We think this objection without force. _ The question here is, what was leased? and we think the answer to this question very clear. There is no obscurity, or uncertainty in the terms [392] ■of the lease. It is the cigar and news room in the New I-Iurd House, the appurtenances thereto, and the right of ■entrance to and from the hotel rooms; also, the entire cigar privilege of the New Hurd. There can be no doubt that, on the one hand, the plaintiff understood that he was getting the room with the door opening into the Hurd Hotel office, and was to have the cigar privilege with the door opening into the hotel, nor, on the other hand, that the lessors understood that they were leasing the same thing. Denison v. Ford, 7 Daly, 384. It is not a case of implied covenant. There was an express covenant for'the peaceable and quiet enjoyment of the thing leased. 2. Nor do we think there can be any doubt that the closing, of the hotel was such an interference in the use [393] of the premises as to amount to an eviction. Wood, Landl. & Ten. (2d ed.) 1101; Rhodes v. Bullard, 7 East, 116; 3 Suth. Dam. 117; Conlon v. McGraw, 66 Mich. 194; Denison v. Ford, supra. 3. Was the defendant H'ayden liable for the eviction? We think, under the circumstances of this case, that he was. He became assignee of an interest in the lease of the Hurd" House. Plaintiff attorned to him, and he himself assisted in closing the hotel, thus working an eviction. '4. The circuit judge gave the jury the correct rule of damages, recovery being confined to the actual value of the unexpired term, less the rent reserved. We do not think the introduction of testimony relative to the falling off in trade was wholly irrelevant to the question of the value of the use of the premises, and are satisfied that no error was committed to the prejudice of the defendants. The judgment will be, affirmed, with costs. The other Justices concxxrred.