Lazarus v. Ludwig

upon condition that the defendant restore the demised premises in their original state, if required, at the expiration of the lease. The alterations were made pursuant to this consent and upon this condition, and the effect was that such alterations were so made upon what amounted to a collateral agreement on the defendant’s part to restore the premises as indicated. The action is for a breach of the latter agreement. The defense is, in substance, that the plaintiffs waived the defendant’s liability to restore under his agreement; and the appellant points to several incidents which, from his point of view, constitute the waiver. It appears that on the 7th of February, 1895, the plaintiffs notified the defendant to restore the premises to their original condition at the termination of the lease. This notice was repeated upon the 19th of the same month. When these notices were given the plaintiffs supposed that the defendant’s lease would necessarily terminate upon the 1st of the next month (March), instead of the 1st of the following May-This was because the plaintiffs themselves were-lessees of one Van Beuren, and their lease expired on the 1st of March. The defendant in the sublease had taken his term from the plaintiffs, subject to the procurement by the latter of a renewal from Van Beuren. The notices were given upon the assumption that this renewal could not be had. A little later, however, namely, on the 28th of February, the plaintiffs notified the defendant that, as the then present owner of the premises had neither renewed their lease nor paid them the value of the building, they would not surrender the premises on the 1st of March. The effect of this notice was to permit the defendant, so far as the plaintiffs were concerned, to remain where he was under the sublease until the 1st day of May,, and he so remained.. After the 1st of May, the defendant held over, and the plaintiffs instituted summary proceedings against him to recover possession of the premises. A warrant was issued in these proceedings on the 19th day of June, 1895, but still the defendani held on. Shortly before the warrant was issued, namely, June 13, 1895, the plaintiffs executed an agreement leasing the premises to the defendant from month to month, beginning June 1st, and providing that either party might terminate the agreement upon notice to the other of five days. The plaintiffs supposed that the defendant acknowledged this agreement as made on his part as. well, but they were undeceived when he repudiated it in the further summary proceedings which they were subsequently compelled to institute against him. The court held in these latter proceedings-that the supposed agreement in question, of June 13, 1895, was not binding upon the defendant, and the plaintiffs were consequently compelled to proceed against him de nova, as one holding over under an agreement providing for the duration of the term. In the latter proceeding he was finally evicted in November, 1896. In the-previous March the plaintiffs notified the defendant that they elected to terminate the lease upon the 31st day of the same month, and he was again required at once to restore the premises, under his-collateral agreement, to their original condition.

We dee in all this nothing suggestive of the waiver which the-

defendant claims. The plaintiffs distinctly notified him in February., 1895, that they required restoration “at the termination of his lease.” The time of performance under that requirement was undoubtedly extended, but never waived. The defendant’s obligation survived airthe incidents subsequent to the termination of the original lease. So long as his occupancy continued under some, it matters not what, arrangement, it was reasonable that he should have the continuous benefit of the alteration. When, however, that occupancy terminated, it was equally reasonable that the plaintiffs should receive the premises back in their original condition. That was the clear understanding of the parties, as evidenced by all that happened. There was, in fact, no waiver, express or implied, on either side. There was simply an implication extending the time of performance until the appropriate occasion, namely, until the termination of the defendant’s actual occupancy. When the defendant finally got out of the premises, without restoring them to their original condition, he at once became liable for the breach of his collateral agreement. We think, therefore, that the case on this head was properly disposed of by the learned trial justice.

The proof of damage was sufficient to sustain the verdict. It is true that it rests largely upon the testimony of an expert builder, and that the expert had not examined the premises prior to, or at the time of, the original alterations. We think, however, that his estimate of the cost of restoring the premises to their original condition was sufficiently connected with proof of that condition, and that he spoke from information given him of that proved condition as well as from present observation of what was patent with .regard to the alterations. This is questioned, but a careful consideration of the evidence leads us to the conclusion that criticism on that head was for the jury.

It is also contended that the learned court should have admitted, at the defendant’s request, the lease which the latter, repudiated in the summary proceedings. But, as this lease was there held not to be binding upon the defendant, we can see no force in the appellant’s present contention with regard to it. In: our view of the main question, it was of no consequence what the general nature of the agreement was under which the defendant retained possession after the termination of his original tenancy. So long as such agreement contained no waiver of the collateral agreement to restore, it had no bearing upon the breach of that agreement. The supposed lease of June 13, 1895, contained no reference to the latter agreement, either express or fairly to be implied from its language.

We think, therefore, that the judgment appealed from was right, and should be affirmed, with costs. All concur.