Winestine v. Rose Cloak Suit Co. , 93 Conn. 633 ( 1919 )

The defendant Rosengarten claims that the court erred in finding as it did in respect to a large number of matters, and in failing to find as requested as to other matters, and we are asked to correct the finding in those particulars. It is unnecessary to pursue these assignments of error, as it appears from the evidence that no correction of, or addition to, the finding, could properly be made which would affect the judgment that was rendered in the plaintiffs' behalf.

This case turns upon the question whether the evidence was sufficient to warrant the conclusion of the trial court as to the purpose and effect of the renewal of the lease originally made to the Rose Cloak and Suit Company by the defendants Levys.

The motive with which an act is done may be, and often is, ascertained and determined by inference from the proof of facts and circumstances connected with the transaction and the parties to it. Sallies v. Johnson,85 Conn. 77, 81, 81 A. 974. So in this case, it appears that the new lease of the premises in question, made by the Levys to Pauline Rosengarten, is like the old one made to the Rose Cloak and Suit Company, except that the name Pauline Rosengarten is substituted in the place of the Rose Cloak and Suit Company; that Pauline Rosengarten was the president of the Suit Company; that she owned twenty-seven of the thirty shares of the capital stock of the Suit Company; that of the three remaining shares two were owned by members of Pauline Rosengarten's family; that the rent to be paid under the new lease was the same that was paid under the old lease made with the Suit Company; and that the management and control of the business of the Suit Company was not changed after the defendant Rosengarten claims that she obtained a lease in her own name from the Levys. The motive for the defendant Rosengarten's attempt to get rid of the plaintiff's privilege to renew, can be found in the fact that prices for rents had greatly increased during the term of the Suit Company's original lease. Of this fact undoubtedly the trial court took judicial notice.

These facts, in the absence of any satisfactory explanation, which was not given, warranted the court below in reaching the conclusions just referred to. It heard the parties, had the benefit of their presence and appearance, and after considering all the circumstances reached the conclusion that the lease from the Levys to Pauline Rosengarten was not made in good faith. An examination of the record does not disclose that this conclusion is without sufficient evidence to support it.

The defendant Rosengarten now contends that the finding does not show that the Suit Company was entitled to renew its lease with the Levys. A complete answer to this proposition is to be found in the fact that it appears that the defendant Rosengarten in her brief concedes that the Suit Company gave the notice required by its lease with the Levys and "thereby became entitled to a renewal of the lease in case it desired such renewal."

As we have just stated, it appears that the defendant Rosengarten conceded that the Suit Company gave notice to the Levys of its intention to renew, and that it had the right to renewal if it wished to exercise that right. The trial court has found that such right was exercised by the Suit Company; that such renewal was made with the intention that it should be a renewal of the original lease of the Suit Company with the Levys. The fact that Pauline Rosengarten took the lease in her name did not relieve the Suit Company from its obligation to fulfil its contract with the plaintiff Jennie Winestine. The only way the Suit Company could avoid this obligation was by the abandonment of its right to renew. Cunningham v. Pattee, 99 Mass. 248,253; Nutmeg Park Driving Corporation v. Fisk, 81 Conn. 463,465, 466, 71 A. 499.

The record discloses that the only objection properly made by the defendant Rosengarten in the court below as to the relief claimed by the plaintiffs in their complaint, and the relief granted by the trial court in its judgment rendered, was that the defendant Rosengarten should not be enjoined from proceeding with her action of summary process, — for, if the lease from the corporation has been actually renewed, that is a good legal defense.

Undoubtedly it is the rule that when a party has a remedy at law, he cannot come into equity, unless from circumstances not within his control he could not avail himself of his legal remedy. Before refusing its aid upon this ground, however, it must appear to the court that the legal remedy is complete and adequate to afford the complainant full redress.

In this case the evidence shows, as the court has found, that the plaintiff Jennie Winestine, acting under the privilege given by her lease from the Suit Company, after taking possession of the premises, expended more than $1,000 in making permanent improvements of the store which she had leased. There is a class of cases holding that one having the right to declare a forfeiture, who does not declare it when he is entitled to do so, waives his right. This proposition rests upon the ground of estoppel. In such cases the lessee has usually made large expenditures or made valuable improvements believing that the right of forfeiture would not be asserted. O'Connor v. Timmermann,85 Neb. 422-425, 123 N.W. 443, 24 L.R.A. (N.S.) 1062-1066.

This is such a case, and, further than this, it also appears that the plaintiff Jennie Winestine has faithfully kept and is faithfully keeping all the terms and conditions of the lease, and that she has taken the necessary steps to exercise her privilege of continuing the lease for five years, as provided therein. Under these circumstances, it is apparent that the plaintiffs are entitled to an injunction to protect their rights.

There is no error.

In this opinion the other judges concurred.