Upton v Greenlees
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1855 |
| Date | 01 January 1855 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 986
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
Upton v. Greenlees. This action was also commenced on the 31st of October, 1854, and the plaintiff's claim indorsed on the writ of summons was as follows :- " 1854, June 24th. Half-year's rent of house No. 4|- Bread Street, Cheapside, London, 871. 10s." [52] The declaration was for money payable for use and occupation of messuages and premises, and on accounts stated. The defendant pleaded ,a denial of the debt, except as to 431. 15s., parcel of the money claimed, and, as to that sum, payment into court. The plaintiff accepted that payment in satisfaction pro tanto, and joined issue as to the rest. By consent of the parties, and pursuant to an order of Crowder, J., the question between the parties was submitted to the court upon the following case:- On the 14th of June, 1849, the Goldsmiths' Company, of London, being then seised in fee-simple in possession of the premises hereinafter mentioned, by indenture of that date, sealed with their corporate seal, and also executed by Francis Nalder, demised to the said Francis Nalder, for twenty-one years from the 24th of June, 1847, the houses and premises Nos. 40 and 41 Cheapside, London, subject to the annual rent of 6301. 2s. 6d., payable quarterly, and also to the payment to the company, on the 25th of March in each year, of such money as they should have paid, or be bound to pay, for the premium and duty for insurance of the said premises from loss or damage by fire. That indenture contained covenants on the part of Nalder to pay the said rent and money without any exception, and to repair, casualties by fire to the extent thereinafter specified only excepted; and, on the part of the company, to shew a policy insuring the demised premises from loss or 17 C. B. 53. OTION V., GREENLEES 98 7 damage by fire to the extent of 70001./to keep- that insurance in force during the continuance of.the demise, and;that, if the"demised premises, or any part thereof, should at any time during the said term be destroyed or damaged by fire, all such money as might be recoverable by virtue of such insurance, or a sufficient part thereof, should with all convenient speed be applied towards the re-building and repairing the £53] premises, or such part thereof as should be so damaged or destroyed. That indenture also contained a stipulation that it should be lawful for the company and their officers, and for the officer of the establishment in which' the premises should be insured against loss or damage by fire, to enter the demised premises, and examine the state thereof. - Under this demise, Nalder entered, and had possession of the thereby demised premises for the said term; and, afterwards, all his estate and interest in the premises vested by assignment in the plaintiff. On the 12th of June, 1851, by a memorandum in writing of that date, subscribed by the plaintiff and the defendant respectively, the plaintiff agreed to grant to the defendant on or before the 24th of June, 1851, or when required by the defendant, and at his costs, a lease of part of. the said premises; by the description of "All that messuage or tenement, with the appurtenances, situate and being No. 4| Bread Street," for a term of five years and a half from the said 24th of June, 1855, at the yearly rent of 1751. payable quarterly, on the four usual days for payment of rent,- the first quarterly payment to become due on the 29th of September, 1845; and that, in such lease, the plaintiff should covenant for quiet enjoyment: And the defendant thereby agreed to accept such lease, and;' to execute a counterpart thereof; and that in such lease and counterpart should be contained covenants for payment of the said rent as aforesaid, and of sewer-rates;, and all other rates, charges, .taxes, and assess ments, and to keep the premises and fixtures in repair during the term, and so to deliver them up to the plaintiff, reasonable use and wear only excepted, and not to underlet without the consent in writing of the plaintiff, nor do anything contrary to the stipulations contained in the said lease of the 14th of June, 1849: And it was thereby mutually [54] agreed that a ground floor warehouse belonging to Francis Nalder, apparently part of the premises thereby agreed to be demised, but then parted off therefrom by a temporary partition, did not form part of the premises thereby agreed to be demised; and that, until a lease should, be executed pursuant to that agreement, the defendant _should enter and occupy the premises thereby agreed to be demised, as tenant from year to year, from the 24th of June, 185.1, under the rents, covenants, and agreements stipulated to be inserted in the said intended lease. , Under this agreement, the defendant entered, and occupied the premises thereby agreed to be let, and paid, and the plaintiff accepted, rent for the same, at the said agreed rate, by quarterly payments, on the four usual days for payment of rent, up to and inclusive of the 25th of December, 1853. No lease or counterpart was prepared, or required. The plaintiff was, at the time of the fire hereinafter mentioned, also lessee, by separate instrument of lease, under the said Goldsmiths' Company, of the premises No. 5 Bread Street, next adjoining to the defendant's premises, for a term whereof three years and a quarter were then unexpired. During the defendant's said occupation of the said premises, viz. on the 31st of December, 1853, the buildings on the land in .the defendant's occupation, together with the adjoining buildings'No. 5, -were* partially consumed by fire; but the greater portion of the party-wall separating the premises in the defendant's occupation from those adjoining, as shewn in the plan No. 1, was. not destroyed. And the defendant thereupon quitted the occupation of the premises so theretofore in his occupation. The Goldsmiths' Company having subsequently signified their intention of re building, the plaintiff trans-[55]-mitted to them a plan for re-building, which plan however was rejected by the company. The re-building was completed in December, 1854. ò . On the 8th of April, 1854, Mr. Philip Hardwick and the plaintiff signed the plans according to which the premises burnt were re-built, and being the plan No. 2, ante, p. 981: and, on the 4th of May, 1854, by an agreement made between Philip Hardwick, acting on behalf of the Goldsmiths' Company, and the plaintiff, the said Philip Hardwick agreed, that, when and so soon as the buildings thereinafter mentioned 988 UPTON #,"0REENLEBS C. B. 56. should be completed, the said company would demise all that plot of ground situate on the west side of Bread Street aforesaid, as described in the plan attached to the said agreement, together with the messuage, dwelling-house, and premises intended to be built thereon, to the plaintiff, from the 25th of March, 1854, for the-term of twenty-four years, at the rent for the first three years of the said term of 2701. 12s. 6d. and, for the remainder of the said term, of 5001.: and the said Philip Hardwick, for and on behalf of the company, agreed, within the first year of the said term, to erect, build, and finish, fit for occupation, two 'capital warehouses aa*3 messuages according to the plans and specifications signed by the plaintiff; and'-the plaintiff agreed to accept such demise as aforesaid, and to execute a counterpart thereof, whenever tendered to him for that purpose. - After that agreement, and before the 24th of June, 1854, the said Philip Hardwick pulled down what remained of the party-wall which so originally divided No.'4J from No. 5, and afterwards proceeded to build the said two warehouses according to the plan No. 2. ò One of the said new warehouses was built upon the area of what was No. 4| Bread Street, and also upon part of the area of what was 'No. 5; and the other new [56] warehouse was built upon the residue of what was No. 5. The party-wall dividing the new No. 4J from the new .No. 5, was carried up to the height of several feet above the level of the first floor before -the 24th of June, 1S54.. The defendant has not since the fire in fact occupied any part .of the premises demised to him; nor has he in any way assented to the alterations. The plaintiff, before the 24th of June, 1854, offered to demise the new premises, No. 4| Bread Street, to other-persons than the defendant,'at a rent of'6001. per-annum; and said to such persons that the defendant had no claim on him for the said premises, as he had no lease; that he was no longer his tenant; and that he never would allow him to rent another brick under him. On the 19th of October, 1854, the plaintiff accepted a new lease from the Goldsmiths' Company, of the premises demised to the defendant, as well as those adjoining for a term of years commencing from the 25th of March, 1854., The defendant never authorised or consented-to the plan signed by the plaintiff and Philip Hardwick, or the agreement of 'the 4th of- May, 1854, or the lease of the 19th of October, 1854. On the 7th of June, 1854, the defendant's attorney sent the following letter to the plaintiff:-[See the letter, ante, p. 40.] The defendant has not paid rent for any period subsequent to the 25th of December, 1853, except the 431. 15s. paid into court in this cause, and considered as satisfying the rent which became due on the 25th of March, 1854. The plan No. 1 (ante, p. 980) shews the state of the premises occupied by the defendant before and at the time of the fire. The plan No. 2 (ante, p. 981) shews the state of the premises after the...
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