12 A. 232 | R.I. | 1888
The plaintiff in this action, having failed to recover on the award, now seeks to recover on a count for use and occupation. The defendant, as appeared at the former hearing, is in occupation under an indenture of lease for five years with covenant for renewals, five years by five years, for seventy-five years longer. It stipulates that the rent after the first five years shall be fixed by appraisal for each succeeding five, and be paid by the lessee as appraised. No appraisal has been made for the current five years. The defendant contends that he is liable for rent only according to the terms of the lease, and offers to join the plaintiff in the appointment of referees to make the appraisal. The plaintiff contends that the attempt already made to fix the rent by arbitration having failed, he is entitled to recover a reasonable rent in his pending action. To this point he cites the following cases: Phippen v. Stickney,
3 Metc. 384, 389; Stose v. Heissler, 8 Western Reporter, 441, 445; Uhrig v. Williamsburg City Fire Insurance Co.
Judgment for defendant for costs.