Delashmutt v. Thomas

Bartol, C. J., delivered the opinion of the Court. This suit was instituted hy the appellant’s testator, and is an action of covenant, upon a certain article of agreement under seal, made between the plaintiff and the appellee, and set out at length in the declaration. There was a demurrer to the declaration, which was sustained by the Circuit Court and judgment thereon entered for the defendant, from which this appeal was taken. ■The only question presented by the record, is the sufficiency of the cause of action set out in the narr. In the argument in this Court in support of the demurrer, the counsel for the appellee has relied upon certain alleged defects in the declaration, for the want of apt and proper averments in the statement of the plaintiff’s case.

These objections are some of them well taken, and we think the narr. is in many respects defective ; but without stopping to point out these defects, which might he cured by amendment, we propose to consider the main question whether the plaintiff has any right of action upon the particular covenant, the breach of which by the appellee, is alleged in the narr., and-.which, is in these words “the said Arthur Delashmutt to have the preference of renting said property as long thereafter as it shall be rented as a store.” What is the effect of this stipulation? and what rights did they confer upon the lessee? It appears from the articles of agreement, that the appellee leased to Delashmutt his store room, &c., for the term of three years, at $180 per annum; then follows the provision above stated ; after which it is stipulated that the lessor shall give three months notice, in case he should want the property at the ¹⁴² expiration of the three years, and the les,see on his part agrees to give quiet and peaceable possession at the expiration of the three years. The breach alleged is that the defendant gave the notice, and compelled the plaintiff to leave tfre property, and refused to give him the preference of renting the property for any longer period than three years, although it was for rent as a store after the expiration of said three years, and the defendant did actually rent it as a store after and from the termination of the plaintiff’s said tenancy, and refused to rent the same to the plaintiff for any longer period than-the said three years, notwithstanding it was afterwards rented as a store. The appellant contends that the stipulation must be construed as a covenant to renew the lease and cites,