O'Brien v. Mueller

Page, J., delivered the opinion of the Court. The record discloses the following facts: Thomas J. O’Brien, the husband of the appellant, being the owner of certain real property in Baltimore City and conducting therein a bar and restaurant, fitted up the premises for the purpose of his business, with costly marble counters and bar, table, buffet, range, boiler and other things. On the 6th of November, 1885, he leased the property to William W. Christopher for a term of five years, with the privilege of an extension for a further term of two years. On the same day he sold to the said Christopher all the "stock and fixtures” then on the property, including all the articles above mentioned.

In the paper then ¹³⁵ executed, O’Brien authorized and empowered “ said Christopher, his heirs or assigns to remove any or all of said property ” and agreed “ not to regard them or any of them as fixtures, or to hold said Christopher, his heirs or assigns responsible for the reasonable wear and tear occasioned by such removal.” On 6th /January, 1888, the appellee entered into a co-partnership with Christopher, by the terms of which the former became the owner of one-half of all the articles theretofore sold to Christopher by O'Brien. On the 6th of June, 1889, this partnership was dissolved and the appellee purchased “ all the interest ” of Christopher in the stock, fixtures and good will for $ x ,000, and on .the same day by an assignment endorsed on the lease, Christopher transferred to the appellee all his rights under the lease. This assignment was assented to in writing by O’Brien. The appellee continued to hold the property without a new lease, during the original term, and the extension for two years thereafter.

In November, 1894, a new lease was executed by O’Brien to the appellee, for the term of one year. No reservation or mention was made in this lease, of the fixtures, nor was there any reference to the old lease. Without any other lease in writing, the appellee continued his occupation of the premises. O’Brien died in June, 1898, leaving a last will, by which he devised all his property to his widow the appellant, who took out letters testamentary.

After his death, the appellee paid the rent to the executrix. . In December, 1901, the appellant filed her bill in equity substantially charging the above facts, also that she had notified the appellee to quit the premises, that the appellee had stated he was about to remove all the said articles from the premises, and that such removal would cause her “irreparable loss and injury.” The prayer of the bill, among other things, is for an injunction restraining the appellee from removing “from the premises or in any manner interfering with, the articles mentioned in the bill, save for the ordinary uses thereof, in his business.” ¹³⁶ Upon'a motion to dissolve, the-cause was heard upon bill, answer and testimony, and dismissed by the Court, whereupon the appellant appealed. ' The only question presented to this Court or argued by the' réspective solicitors, is whether under all the circumstances of the case, as we have stated them, the appellee had the right to remove the several articles especially named in thé bill and ¿lleged therein to be “fixtures.” It is insisted by the appellant, that by the acceptance of the new lease of 1894, without removing or reserving the fixtures, the appellee has made a dereliction of them to the landlord, and that the case at bar therefore comes within the class to which belong the-cases of Carlin v. Ritter, 68 Md. 48 , and Bauernschmidt v. McColgan, 89 Md. 135 . These cases do lay down the principle, as well settled law, that when a tenant accepts a new