Opinion
November 9, 1942.
Action by a tenant to recover damages from its landlord. The tenant held over after the expiration of the lease term. The complaint alleges that the landlord agreed to permit the tenant to remain sixty days, but before the expiration thereof procured possession of the premises by order of the court; and that during that process the landlord converted the tenant's personal property. At the close of the plaintiff's case, the trial justice dismissed the complaint in so far as the cause of action was in conversion, and held that the plaintiff might bring an action on the alleged breach of agreement. Judgment, and order denying a motion for a new trial, affirmed, with costs. The dismissal of the cause of action for conversion was correct. We have considered the complaint as alleging a cause of action based on a breach of an agreement. We find that the evidence fails to establish a prima facie case that an agreement was made. The dismissal is, therefore, correct on all grounds.
The warrant of the Municipal Court awarded possession of the real property to the defendant. It did not and could not authorize defendant to seize plaintiff's personal property; nor did it authorize defendant to retain possession thereof after plaintiff demanded its return. Whether the complaint be viewed as stating a cause of action in conversion or for breach of agreement, plaintiff made out a prima facie case sufficient to put defendant to its proof. In the interests of justice a full trial of the issues should be had.