Doyle v Hort

• Jurisdiction: Ireland
• Judgment Date: 14 June 1879
• Date: 14 June 1879
• Court: Chancery Division (Ireland)

Ex. Div.

Appeal.

In the Exchequer Division, before PALLES, C. B., FITZGERALD and DOWSE, BB. In the Court of Appeal, before BALL, C., MORRIS, C.J., and DEASY, L. J.

DOYLE

and

HORT

Gray v. BriscoeENR Noy, 142.

Lock v. FurzeENR 19 C. B. (N. S.) 96.

Smith v. ComptonENR 3 B. & Ad. 407.

Spedding v. NevellELR L. R. 4 C. P. 212.

Bunny v. HopkinsonENR 27 Beav. 565.

King v. JonesENR 5 Taunt. 418, 428.

Kingdon v. NottleENR 1 M. & S. 355.

Williams v. BurrellENR 1 C. B. 402.

Lock v. FurzeENRELR 19 C. B. (N. S.) 96; affirmed in Exchequer Chamber, L. R. 1 C. P. 441.

Wall v. The City of London Real Property CompanyELR L. R. 9 Q. B. 249.

Pounsett v. FullerENR 17 C. B. 660.

Short v. KallowayENR 11 Ad. & El. 28.

Gray v. FowlerELR L. R. 8 Ex. 249.

Bain v. FothergillELR L. R. 7 H. L. 150.

Hopkins v. GrazebrookENR 6 B. & C. 31.

Rolph v. CrouchELR L. R. 3 Ex. 44.

Flureau v. ThornhillUNK 2 Wm. Bl. 1078.

Gray v. Briscoe Noy's Cas. 142.

King v. JonesENRENR 5 Taunt. 418; 4 M. & S. 188.

Smith v. ComptonENR 3 B. & Ad. 189, 407.

Fitzgerald v. BrowneUNK 4 Ir. C. L. R. 178.

Hey v. WycheENR 2 Gale & Dav. 569.

Maddock v. MalletUNK 12 Ir. C. L. R. 173.

Coward v. GregoryELR L. R. 2 C. P. 153.

Wall v. The City of London Real Property Company, LimitedELR L. R. 9 Q. B. 249.

Kingdon v. NottleENRENR 1 M. & S. 355; 4 M. & S. 53.

Spoor v. GreenELR L. R. 9 Ex. 99.

Holder v. Tayloe Rolle's Abr. 518.

Howell v. RichardsENR 11 East, 633.

Gibson v. DoegENR 2 H. & N. 615.

Spunner v. Walsh 10 Ir. Eq. R. 386.

Caldbeck v. BoonUNK Ir. R. 7 C. L. 32.

Broughton v. ConwayENR Mo. 58; Dyer, 240.

Browning v. WrightUNK 2 B. & P. 13.

Martyn v. M'Namara 4 Dr. & War. 424.

Delmer v. M'CabeUNK 14 Ir. C. L. R. 377.

Kean v. StrongUNK 9 Ir. L. R. 74.

Nind v. Marshall 1 Br. & Bing. 319.

Lewes v. Ridge Cr. Eliz. 863.

Bain v. FothergillELR L. R. 7 H. L. 210.

Pounsett v. FullerENR 17 C. B. 660.

Gray v. FowlerELR L. R. 8 Ex. 282.

Nind v. MarshallENR 1 Br. & B. 345.

Earl of Clanricarde's CaseENR Hob. 275.

Landlord and tenant — Construction of covenant in lease — Sub-demise with covenant to permit a trade prohibited by superior lease — What constitutes a breach of such covenant — Action by assignee of sub-lease for an alleged breach, consisting in the interruption of the trade by the superior landlord — Damages.

VOL. IV.] Q. B., C. P., & EX. DIVISIONS. 455 pay the full rent at the days and. times specified, and a tender of Appeal. half the rent would not be a compliance with that covenant. It is 1879. better, I think, to adopt the construction of excluding the covenant MgiAx v for payment of rent from the covenants the performance of which N. is to entitle the tenant to the benefit of the proviso for reduction, and thus give a substantial and practical effect to that proviso which it would otherwise not have. The distinction taken in the proviso for re-entry between the covenants for payment of the rent and the other covenants, I think strengthens that construction. For, while a breach of any of the other covenants entitles the landlord immediately to re-enter, a period of thirty days must elapse in the case of a breach of the covenant for payment of the rent before the landlord can re-enter. . Decision below reversed. Solicitors for the Appellant : Messrs. James Plunkett 4. Son. Solicitors for the Respondent : Messrs. Meade 8f Calles. DOYLE v. HORT (1). Ex. Div. 1878. Landlord and tenant--Construction of covenant in lease-Sub-demise with June 7, 12, covenant to permit a trade prohibited by superior lease-What constitutes a 13. breach of such covenant-Action by assignee of sub-lease for an alleged July 5. breach, consisting in the interruption of the trade by the superior landlord- Appeal. Damages. 1878. Nov. 19, 20 F. demised to M. a plot of building ground, by a lease of 1806, which conÂtained a covenant on the part of M., his executors, administrators and assigns, not to carry on, or to permit to be carried on, upon the premises certain trades, amongst others that of a butcher, under pain of forfeiture. M. sub-demised to H., by lease of 1808, a house built on this plot, with the coach-house and stable thereto belonging ; the sub-lease did not contain any covenant prohibitÂing the carrying on of any trade upon the premises, but it did contain a covenant to keep and yield np the premises in repair. H. sub-demised the (1) In the Exchequer Division, be- before BALL, C., MORRIS, C. S., and fore PALLES, C. B., FuzGEBALD and DEASY, L. J. DOWSE, BB. In the Court of Appeal, Vol,. IV. 21T 1879. Jan. 25. LAW REPORTS. (IRELAND). [L. R. L coach-house and stable to D., by lease of the 11th of November, 1875, which contained a covenant on the part of D., his executors, administrators and assigns, not to carry on, or permit to be carried on, certain specified trades, or any other offensive trade, "provided, nevertheless, and it is hereby declared and agreed, that it shall and may be lawfulfor D., his executors, ministrators and assigns, to open and keep open a butcher's shop on said demised premises ; " the lease contained a covenant for quiet enjoyment without disturbance by H., his executors, administrators or assigns, or any person claiming under him. On the 23rd of November, 1875, after D. had expended £40 in converting the coach-house and stable into a butcher's shop, he was informed by H.'s solicitor that they could not be so converted without the consent of the owner in fee, which had not been obtained, and D. thereupon stopped the works. On the 1st of February, 1876, D. assigned the sub-lease to the Plaintiff, who, in April, 1876, nothing having been done to the premises since the 23rd of November, 1875, recommenced the conversion of the stable and coach-house into a butcher's shop ; the Work was completed, and the premises opened as a butcher's shop, in May, 1876. On the 7th of June, 1876, a bill for an injunction was filed by M. against H., D. and the Plaintiff ; on the 22nd of June an interim injuncÂtion was granted, subsequently made perpetual by a decree which was affirmed on appeal on the 13th of December, 1877. H. took hardly any active part in these proceedings, and wholly submitted after the interim injunction was granted ; the Plaintiff was the person who was active in resisting the decree for an injunction, and in so doing incurred costs to the amount of more than £400. In an action for breach of covenant against the Defendants, as exeÂcutors of H. :- Held, by the ExcllEorm DrusioN, that, before the assignment to the Plaintiff, there had been a complete breach of the covenant, and the ultimate damage resulting from it had been sustained ; that the right of action for this breach did not pass to th5 Plaintiff ; and that, assuming the Plaintiff could maintain an action on the covenant, he was only entitled to nominal damages. Held, by the COURT OF APPEAL (affirming the order of the ExcREQuKa DivisioN, but upon different grounds), that the clause authorising D. and his assigns to open and keep open a butcher's shop on the demised premises did not amount to a covenant that such shop might be opened without effectual interÂference from any person whomsoever, but was only a license or contract proÂtecting the tenant against acts of H. and those claiming under him ; that the proceedings out of which the alleged cause of action arose having been instiÂtuted and carried on solely by a third person, having a paramount title, the Plaintiff was not entitled to recover ; but that, having regard to the frame of the pleadings, the verdict for nominal damages should stand. ACTION for breach of covenant against the Defendants, execuÂtors of Sir J. W._Hort, tried before DOWSE, B., at the TrilArY Sittings, 1878e Tu. IV.] Q. B., C. P., & EX. DIVISIONS. The action was commenced by writ of Summons and Plaint, which stated that Sir J. W. Hort, by indenture of lease, dated the 11th day of November, 1875, in consideration of the sum of £100,, and the yearly rent of £20, and the covenants comprised in said indenture, demised to one Denis Doyle all that and those the preÂmises situate in Stephen's-lane, known as the coach-house and stables belonging to the house No. 1, Merrion-square, East, in the city of Dublin, to hold the same unto Denis Doyle, his executors, administrators and assigns, for fifty-six years from the 1st of NoÂvember, 1875 ; and it was thereby provided, declared and agreed, that it should be lawful for Denis Doyle, his executors, adminisÂtrators and assigns, to open and keep open a butcher's shop on the premises thereby demised, and Denis Doyle paid the said fine on the execution of the lease, and entered into the premises and exÂpended large sums of money in repairing the same and rendering them suitable, and thereby did render the same suitable, for a butcher's shop, and afterwards, and whilst the lessee's interest in the lease was vested in Denis Doyle for the entire residue of the term thereof, by indenture, dated the 1st of February, 1876, Denis Doyle, for the considerations therein mentioned, assigned all his estate and interest in the premises and in the lease of the 11th of November, 1875, to the Plaintiff, and the Plaintiff thereupon entered upon the premises and incurred great expense in further repairing the same, and in rendering them suitable for a butcher's shop, and in procuring and registering the said assignment ; and afterwards the Plaintiff having opened a butcher's shop in the said demised premises pursuant to the said proviso and agreement, one Louisa Maunsell and one George Meares Maunsell filed their bill of complaint in the High Court of Chancery in Ireland against Sir J. W. Hort, Denis Doyle and. the Plaintiff, and thereby prayed that Denis Doyle and the Plaintiff might be restrained from using the premises comprised in the said lease of the 11th of NoÂvember, 1875, as a butcher's OT any other shop ; and that Sir S. W. Hort, Denis Doyle and the...