Richard v. Shea , 93 Conn. 534 ( 1919 )

The plaintiffs sue to recover rent claimed to have accrued and to be unpaid, reserved in a sublease made by them to the defendant. The sole defense to the action pursued below was, that by the plaintiffs' failure to obtain from the owner of the property and original lessor his written consent to the subletting, as they had agreed to do in their lease to him, they had, prior to the time for which recovery was sought, broken the lease and thereby released the defendant from further obligation thereunder.

The appeal, in so far as it relates to the charge of the court as made, concerns questions of waiver and incidentally of estoppel. Some of the passages complained of deal with a claimed waiver on the part of James P. Shea, the owner of the property and original lessor, of the stipulation in an indenture of lease between him and the plaintiff Albert J. Richard to the effect that Richard, the lessee, would not assign the lease or underlet a part or the whole of the premises without written permission from the lessor. Other portions relate to a claimed waiver on the part of the defendant of a provision embodied in the sublease to him, whereby the plaintiffs undertook to secure from their landlord a written consent to the subletting. The court in its charge covered both of these subjects, and instructed the jury that to entitle the plaintiffs to a verdict they must be satisfied that both waivers had been established by a preponderance of evidence. As the jury returned a verdict for the plaintiffs it necessarily follows that they found in favor of both waivers.

The burden imposed upon the plaintiffs by the charge was greater than they were called upon to bear. If the defendant waived compliance on the part of the Richards with their agreement that they secure written permission for their subletting to him, he will not be permitted to assert that noncompliance with it constituted a breach of the terms of their lease to him. It matters not what James P. Shea's attitude or legal rights may have been. It is not pretended that he asserted any rights adverse to the defendant's occupancy. The latter left the premises and refused to pay further rent to the Richards, for no other reason than the purely technical one that they had not obtained the written consent they had undertaken to get. If, by his words or conduct, he waived compliance with that stipulation, he cannot now be suffered to base a default upon noncompliance. If, as the result of that waiver, the plaintiffs were influenced, as was natural, to take no steps to procure the written consent, all the elements of an estoppel are present, and such estoppel is an effective bar to his defense. Bernhard v. Rochester GermanIns. Co., 79 Conn. 388, 393, 65 A. 134. Such being the case, those portions of the charge which concern a waiver by James P. Shea of his rights, and they include all but one of the passages complained of, possess no present importance.

In the remaining passage, which alone bears upon the matter of waiver by the defendant, we are unable to discover anything erroneous. In fact it is harmful to the plaintiffs rather than otherwise, since it makes their recovery contingent upon a finding of a waiver on the part of both James P. Shea and Michael.

The two complaints made, of failure to charge as requested, are not well founded. One relates to a contingency which has never happened, and creates out of a failure to obtain a written consent, which the lease to the defendant did not require the plaintiffs to secure until the contingency arose, a present breach of the terms of the lease. The other is a statement of principle so broad that counsel for the defendant does not undertake to justify it.

The defendant's motion to set aside the verdict was properly denied. The plaintiffs offered evidence to establish that, notwithstanding the condition in the sublease requiring the plaintiffs to obtain the landlord's written consent to it, the defendant, having the landlord's oral consent that he become the lessee of the Richards, paid to them the agreed purchase price for the lease, business, license, fixtures and stock, went into occupation of the premises and personal property therein, applied for and received the transfer to himself of the license, conducted the business for four months, using the stock of liquors on hand and employing Richards in so conducting it, and paid to the Richards the agreed monthly rent as it accrued, and that during this whole period he made no request for the written consent, or reference to it whatsoever, and indicated in no way that he was not fully satisfied with the situation and the Richards' performance of the contract. A finding by the jury that the defendant had by his conduct waived compliance with the provision in question was, upon this evidence, not unreasonable.

There is no error.

In this opinion the other judges concurred.