Opinion
05-31-1893
KETCHUM et al. v. SANDT et al.
W. H. Vredenburgh, for complainant. J. S. Applegate, for defendants.
Bill by Solomon Ketchum and others against Sarah E. Sandt and others, executrices of Mifflin Paul, and one McCue, to enjoin the making of a lease. Application for rule to show cause why an injunction should not issue. Denied.
W. H. Vredenburgh, for complainant.
J. S. Applegate, for defendants.
GREEN, V. C. Complainants in May, 1892, leased from the defendants a livery stable at Sea bright for the term of 11 months, ending April 1, 1893. The written lease contained a provision that the lessees should be entitled to a renewal for two years on their giving written notice to that effect on or before the 1st day of January, 1893. They did not give such notice. On or about the first of April the defendants executrices of Mifflin Paul rentedthe stable to the other defendant, McCue. Complainants charge that on the 10th day of September, 1892, at the close of the season, and on a settlement of the rent for the first term, at the stable at Seabright, an agreement was entered into by Mrs. Sandt, one of the defendants, and one of the Ketchums, which amounts either to a waiver of the notice required in the lease and a renewal for two years thereof, or a verbal lease for two years of the stable; that, relying on such agreement, they have entered into engagements for the business of the year 1893, and have made contracts for the purchase of harness and carriages to the extent of between $1,000 and $2,000, which will be useless to them if they cannot use them at Seabright. The complainants' equity, if any, is either that Mrs. Sandt, by what took place at the time of the settlement of the rent, waived the necessity of giving the notice in writing of their adopting the option for a renewal of two years, or made an independent verbal lease of the stables for that term. The answer positively and unequivocally denies both. She says that she did not, either at Seabright or any other place, on the 10th of September or any other time, either waive the requirement of the lease that notice of the intention to continue the tenancy for two years more must be given on or before January 1st, or further let the premises. Her affidavit is as explicit as the answer. It is, however, claimed that the affidavits annexed to the bill are to be regarded as not overcome by these specific denials. We have the affidavits of two of the Ketchums and of a Mr. Whitmore, who is employed as the superintendent of this stable. They undoubtedly corroborate one another, and are in sharp contradiction of Mrs. Sandt's affidavit. There seems to be no controversy but that the complainants had been somewhat back ward in payment of their rents during the summer. The last payment of $300 fell due upon the 1st of September. Mrs. Sandt says that she had considerable trouble in making her collections, and was at Seabright on the 6th or 7th of September, trying to procure this last installment; that they excused their nonpayment on the ground of their not being able to obtain a settlement with the proprietors of the Oriental Hotel, but she ascertained that that statement was not true, as the hotel had made weekly settlements with the stable. This condition of affairs is important, because it would have been folly for them to have pretended that she had made any such verbal arrangement if the rent was in arrears, and they fix the time of the alleged agreement on the day when this last payment was made. This is a date which is susceptible of definite designation, because it was a payment made by check, and both parties are agreed that the time was the 10th of September. The two Ketchums both say that this payment was made at the stable in Seabright, and that the conversation which they rely on took place at the same time. Whitmore says nothing about the settlement, but speaks of the conversation as at that place. This is not a question of mere recollection of a date, nor is it to be lightly treated as a simple question of memory of the day and the month. It is the event of the settlement of that year's rent,—an event which is of a character to fix itself upon the minds, and to leave no doubt as to its surrounding circumstances, and the place where it occurred. If the Ketchums had located the conversation in their stable at Red Bank, Whitmore could not have been a witness to it, for he was either in New York or at Seabright, but they both do locate it as cotemporaneous with the time of the settlement; and, if we can therefore be satisfied as to where this settlement in fact took place, it will be controlling on the question as to which one of these parties is to be believed. Mrs. Sandt says that he had promised to pay her on several occasions, and at last, on the 6th or 7th of September, had promised positively to call at her house in Bed Bank, and pay her the money. She waited all day for him at home in Bed Bank, but he did not come. That her anxiety was increased in consequence of the publication in the village newspaper the day before, that the Ketchums were about to sell out their establishment,—and the paper is produced under the date of September 9, 1892, containing such advertisement. It is true that it is therein stated that this was only temporary, but the significance of this advertisement is in fixing the time, and explaining her anxiety for a settlement. That about 9 o'clock in the evening she put on her things, and told the family that she was going around to the stable to make him settle if she could. That she went there, and he was not home, but that she waited until he came in, and then demanded the money. He said he had not had his supper, and did not have a check. She said she would wait until he could send for a check, which she did, and he then paid her in his stable at Red Bank, on Saturday, the 10th of September, the $300 then in arrear, but that she did not at that time, or at any other, waive the written notice, nor give him any further lease of the property. Her corroboration is almost complete. The servants' testimony, as well as that of the boy, is such as to leave no doubt of the truth of Mrs. Sandt's statement that this payment was made on the 10th of September, at the stable in Red Bank. In the face of this, I do not credit the affidavits of the complainants in which they set up the waiver or new agreement at the time of the settlement located at Seabright. The purchase of other articles, and the making of new arrangements, undoubtedly indicate that the complainants intended to continue the livery business at Seabright at this same place, and they could readily have done so if they had given the written notice which the lease called for. They do not say in their affidavits that they did not give this notice because they were misled by or relied on any waiver of it by Mrs. Sandt, and that would seem to relieve the case of all element of estoppel. I am of opinion that the rule must be discharged.