103 Mich. 494 | Mich. | 1895
May 1, 1889, the defendant and his brother George executed a lease of the first floor and basement of that portion of the McMillan brick building known as “No. 7 Port street,” in the city of Detroit, to E. J. Roos .& Co., “for the purpose of a restaurant and eating house, and, if desired, a first-class and at all times well-regulated bar,” for the period of five years. All improvements and alterations which the lessees desired and the lessors assented to were to be made at the expense of the lessees. No assignment, releasing, or subletting was permitted without the written consent of the lessors indorsed on the lease. Roos & Co. made extensive alterations, and put in expensive fixtures. Roos & Co. subsequently transferred all their rights in the improvements and leasehold to Roth-well & Co., who transferred them to the plaintiff. No such assent as the lease provided for was obtained for these transfers. There was evidence of a verbal assent. The business, it appears, was not prosperous; the rent was largely in arrears; and in July, 1893, the lessors commenced
The situation of the premises before and after the lease and improvements were made is described by Mr. Lloyd, who was familiar with them, as follows:
. “ There had been a cement floor, in good condition, with planks laid over. The new flooring was made as follows: The front two-thirds of the cellar was excavated about a foot, the old cement flooring being removed. A bed of concrete was first laid; then a bed of cement; and then into the cement were laid the so-called ‘marble flooring/ which consisted of square blocks of tile made of baked cement. The concrete and cement made a homogeneous mass. The so-called ‘tiling* might be removed, but would be so broken in the removal as to be of no value. Originally, there was no entrance to the cellar from the street. The improvement consisted in making such entrance, by building a series of stone steps leading about six feet out upon the walk. This stairway was protected from the street by brass railing. The sides and ceiling of the entrance,
The evidence on the part of the plaintiff tended to show that these fixtures could be removed without injury to the building. The court directed a verdict for the defendant.
The defendant has three good defenses to the action:
1. Nearly all the articles were permanently attached to
2. Defendant was not guilty of conversion. Mr. Felcher -testified that in December, when he was attempting to remove the property, Mr. McMillan and his attorney notified him that Mr. McMillan claimed it as part of -the realty, and that, should he persist in the attempt to remove it, McMillan would cause his arrest. The chancery suit was immediately instituted, and the court granted a preliminary injunction. The Felchers neither answered nor moved for a dissolution, and this suit was still pending when the demand was made and this action com
3. We need not discuss the rights of the parties if the-plaintiff had been ejected under a writ of restitution. She voluntarily surrendered possession, and the defendant was. entitled to a reasonable time to make reply to such demand. Flannery v. Brewer, 66 Mich. 509. The reply was made within 24 hours, Sunday excepted, after the demand was made. This must be held a reasonable time, unless the promise to reply in the afternoon takes it out of the rule. We think it unreasonable to hold that the failure to reply at the precise time amounted to a refusal. The reason given for not replying within so short a time
This disposal of the case renders it unnecessary to discuss the other questions raised.
The judgment is affirmed.