Sibley v. Ross.

"Also, to the statement that if Sibley was prevented by the city or from any cause over which he had no control, that that would excuse him, and Ross, Moyer & Co. would have to pay the rent."

Whereupon the jury retired, and after deliberation returned a verdict for the plaintiff.

Thereupon the defendants, by their counsel, made a motion to set aside said verdict and for a new trial, which also appears of record in the cause, which motion, upon deliberation, was overruled by the court, to which defendants, by their counsel, excepted.

LANDLORD AND TENANT.

[Cuyahoga County Common Pleas, January Term, 1890.]

*AI BERT J. GILCHRIST V. Weil, JosePH & Co.

1. COVENANT TO SURRENDER IN GOOD REPAIR-SECTION 4113, REV. STAT. A covenant in a lease to deliver up premises in as good condition and repair as the same shall be put in by the lessor at the commencement of the term, the natural wear and decay excepted, is a covenant to make such repairs only as would ordinarily arise under their occupation, and does not include extraordinary conditions resulting from injury to or destruction of the premises by fire or the elements, and does not prevent the operation or application of Sec. 4113, Rev. Stat.

2. SECTION 4113, REV. STAT.-EXTENT OF INJURY.

To justify a lessee abandoning premises or insisting upon termination of a lease under Sec. 4113, Rev. Stat., the injury must go to the extent of rendering the premises unfit for occupancy; that is, the injury must go so far toward total destruction as to be no longer suitable to be used for commercial purposes, or such as it was fairly and reasonably designed to accommodate in its original construction.

3. RULE APPLIED INJURY TO PART OF PREMISES ONLY,

If the results of a fire were such as to render a whole building or property leased untenantable and unfit for occupancy, it would make no difference where the fire occurred to take advantage of Sec. 4113, Rev. Stat., but if the fire was of such extent as to render only a small part of the premises unfit for occupancy and untenantable, and the remainder of the premises *The judgment in this case was affirmed by the circuit court, October term, 1890; and by the Supreme Court, 52 Ohio St., 677, unreported.

White, Johnson and McCaslin, for defendant in error, cited: Linn v. Ross, 10 Ohio, 412; Cornish v. Winton, 5 Ohio, 477; Suydam v. Jackson, 54 N. Y., 450; Hilliard v. Coal Company, 41 Ohio St., 662; Rolle Abr., 236, Appor., Par., 1-2; Linn v. Ross, 10 Ohio, 412; Womack v. McQuarry, 28 Ind., 103-105; Whittaker v. Hawley, 25 Kan., 674, 689-691; Coleman & Co. v. Insurance Co., 49 Ohio St., 310; Graves v. Berdan, 26 N. Y., 498: 2 Wood Land. & Ten., 1089, 1098, note 3; 1 Tayl. Land. & Ten., Sec. 386, note 3, 387; Avery v. House, 1 Circ. Dec., 468; Suydam v. Jackson, 54 N. Y., 450, 454-455; Sutphen v. Seebass, 12 Daly, 139, 141; Hilliard v. Coal Co., 41 Ohio St., 662, 669; Turner v. Mantonya, 27 Ill. App., 500, 502; Smith v. McLean, 123 Ill., 210, 219: Wall v. Hinds, Gray, 256; S. C., 64 Am. Dec., 64; Vanderpoel v. Smith, 2 Daly, 135; Spalding v. Munford, 37 Mo. App., 281, 283; Lewis v. Hughes, 12 Col., 208, 214-215; Cook v. Anderson, 85 Alabama, 99; Wall v. Hind, 4 Gray, 256; Vanderpoel v. Smith, 2 Daly, 135; Spaulding v. Munford, 37 Mo. App., 281, 282-283; Lewis v. Hughes, 12 Col., 208, 214-215; Cook v. Anderson, 85 Ala., 99; Lockrow v. Horgan, 58 N. Y. 635; Abby v. Phillips, 35 Miss., 618; s. c., 72 Am. Dec., 143, 147, 148, note; Davis v. Alden, 2 Gray, 309; s. c., 95 Am. Dec., 122; Wood Land. & Ten., 599, Sec. 373; Ely v. Ely, 80 Ill., 532; Loft v. Dennis, 1 El. & El., 454.

Cuyahoga Common Pieas.

were not affected so as to render it impracticable to prosecute the business in the remaining premises, without serious or substantial interruption, it would not terminate the lease as a whole but would leave the lessees liable to pay a proportionate part of the rent for the premises left in a rentable condition.

1. OFFER TO REPAIR DOES NOT DEFEAT STATUTE.

If the premises in question were so injured by fire, without the fault or negligence of the lessees, as to render them untenantable and unfit for occupancy, the lessees would have the right to terminate the lease notwithstanding the lessor offered to restore and repair them.

5. TEMPORARY INCONVENIENCE.

Mere temporary inconvenience, a wetting of the walls, and floors, merely putting out a fire in the furnace by flooding the cellar, if it could be removed and effects overcome in a short time, or mere cessation or interruption to business for a day or two would not alone constitute such destruction or such injury as would justify a lessee in terminating a lease under Sec. 4113, Rev. Stat.

6. QUESTION FOR JURY-BURDEN OF PROOF.

Whether premises occupied under a lease containing a covenant to make the ordinary repairs resulting from occupation were without fault or negligence of the lessees destroyed or so injured by fire or the elements as to be unfit for occupancy, so as to relieve them from payment of rent, under Sec. 4113, Rev. Stat., providing that lessees shall not be liable to pay rent under such circumstances, is a question to be determined by the jury and the burden is on the lessees to prove by a preponderance of proof the extent of injury or destruction.

7. OBJECT OF VIEWING PREMISES.

The object of a view by the jury of the premises in dispute is for the purpose of affording them a better understanding, appreciation and application of the testimony submitted at the trial, and not for the purpose of gathering facts therefrom upon which to make up their judgment.

8. CHARACTER AND CREDIBILITY OF TESTIMONY.

Notwithstanding the defendants had the right to sub-let premises occupied by them under a lease, they would not, by sub-letting, release themselves from the payment of rent under their own lease, and inquiry as to whether they were undertaking or seeking to lease other premises, get out of and relet the premises occupied by them and into others, before the former were injured by fire, was permissible only to test the credibility and character of the witnesses interrogated.

Albert J. Gilchrist brought an action against Weil, Joseph & Company, to recover rent for certain premises in Cleveland. The principal defense was that the defendants were discharged from the obligation to pay rent under their lease, by the injury to the demised premises, under sec. 4113, Rev. Stat. The facts bearing materially upon the questions are as follows: Mr. Gilchrist owned two store buildings, situated side by side, each containing four stories and a basement, separated from each other by a brick wall; one, known brick wall; one, known as 63 and 65 St. Clair street, was what is called in the evidence "a double store," that is, it was a store twice as wide as the ordinary stores, each floor, however, containing but one store room. At the time when the lease was made, the two stores, the double and the single, were entirely distinct from each other; each had its own system of heating, lighting, water and sewering; each had its own internal sys

Gilchrist v. Weil, Joseph & Co.

tem of communication from one floor to another by means of stairs and elevators. There were no apertures connecting the two buildings except perhaps one in the basement, permanently closed by an iron door. The double store was vacant. The two upper stories of the single store were occupied. Under these circumstances, a written lease was made by Gilchrist to Weil, Joseph & Company, leasing:

"The messuage or tenement known as numbers 63 and 65 St. Clair street in said Cleveland, and the third and fourth floors of No. 67 St. Clair street immediately adjoining said No. 65 St. Clair street, together with the right of way in common with others over the alleys connecting with said premises, and the yard in the rear of the same, for the term of five years from March first, 1885, at an annual rental of twenty-five hundred dollars."

It then provided for making some four thousand dollars worth of improvements by the lessees, among which improvements were to be "new oak floors first and second stories above basement, patch remainder of all other floors in said building; ceil overhead, and case beams in second story of No. 63 and 65 and in third story of No. 63 and 65, common ceiling in fourth story of No. 63, 65 and 67, and case the posts on the third floor *** iron skylight 5-14, plaster side walls of second story in No. 63 and 65 and the third story in No. 63 and 65 * * * hydraulic elevator and attachments, low pressure boiler and steam fixtures for heating said premises."

This sum was to be repaid to the lessees by the lessor. It further provided that if the "second party remove the safety vault, they shall remove and rebuild it, including the entire foundation from the basement bottom up, in as good condition as they now are."

It further provided that "if the first party be unable to get the third and fourth stories in No. 67 vacated by March 1, 1885, then the rent herein stipulated to be paid by the second party shall be reduced twentyfive ($25) dollars per month so long as they may be kept out of possession of said third and fourth stories, which time shall not exceed one year from March 6, 1885.”

The lessee further covenanted "that the second party will deliver up and surrender to the first party or its heirs, executors, administrators or assigns the possession of the premises hereby leased, at the expiration of the term aforesaid, in as good condition and repair as the same shall be put by the second party at the commencement of said term, the natural wear and decay excepted."

Some of the things which were put in new, are the principal things claimed to have been injured by the fire. After the lease was made, in pursuance of the rights conferred by the lease, two archways on each of the third and fourth stories were made by the lessees through the brick wall separating the double store from the single store. The heating,

44 S. & C. P. Vol. 10.

Cuyahoga Common Pleas

lighting and water systems were changed in the third and fourth stories of the single store, so as to connect with the system in the double store, and to be disconnected with the lower floors of the single store. The interior communications between the lower floors and the third and fourth floors of the single store were also severed. Lessees went into possession of all the demised premises, and made all the changes provided for in the lease, and were reimbursed therefor by the lessor. For some six months before the fire the lessees had been dissatisfied with the premises, and had been trying to sub-let them, having had signs up, and had been negotiating for other premises.

Under these circumstances, on the night of December 30, a fire occurred in the demised premises. The lessees taking advantage of the supposed opportunity to avoid the obligation of the lease, telegraphed Gilchrist on December 30, informing him of the fire, and surrendering the premises. Gilchrist on the same day telegraphed declining to accept the surrender, and directed a carpenter to repair the damage. Either that afternoon or the afternoon of December 31, the carpenter did close the aperture in the roof so that the demised premises were not exposed to the elements, except through the broken or burned windows. The repairs were all completed by the night of January 14.

At the close of the testimony and before the argument of the respective counsel the defendants requested the court to give the following charge, which the court gave, to-wit:

First. "If you shall find from the evidence that the fire spoken of occurred without fault or neglect on the part of the defendants, and that its effect was to occasion a substantial injury to the structure of the part of the building covered by this lease and as a result thereof the said rooms became unfit for occupancy, and the defendants within a reasonable time after the fire surrendered the possession of the premises to the plaintiff, then the plaintiff cannot recover."

And at the same time the defendants asked the court to give the following charges to the jury, which the court refused to give. To which refusals the defendants then and there excepted. To-wit:

Second. "If you find that the fire occurred in the manner and with the result which I have stated in order to find that the rooms became unfit for occupancy within the meaning of this statute, it is not necessary that all the rooms or any particular number of them shall be unfit for occupancy, and if in fact any material part of the premises were so injured that the premises as a whole became unfit for the general use to which as a whole, they would have otherwise have been adapted, then they, in fact, became so injured within the meaning of the statute as to be unfit for occupancy."

Third. "If you shall find the occurrence of the fire in the manner and with the result which I have just stated, and the rooms rented or any

Gilchrist v. Weil, Joseph & Co.

material part thereof became so injured that they could not as a whole be occupied for the general purposes for which rooms of that kind are adapted, with substantially the same comfort of occupancy and substantially the same facilities of using all the rooms without making repairs the making of which would have involved substantial loss of time. and substantial expenditure of money then such premises would be within the meaning of this statute unfit for occupancy."

Fourth. "A building is so injured by the elements as to be unfit for occupancy when it is rendered unfit to be occupied for the purposes for which buildings of the class to which the building in controversy belonged are ordinarily occupied."

Fifth. "In determining the question as to whether the condition of unfitness for occupancy of which I have spoken has been occasioned, the fact that the tenant might by making repairs have adapted the property to his uses and have made it suitable for occupancy will make no difference unless the damage was slight and the repairs could have been. made immediately and with little expense."

Sixth. "If you find that the condition of the rooms in controversy immediately after the fire was such as to render them as a whole unfit for occupancy, the fact that by some small expenditure of time and money. they could have been put in such condition as to have prevented a part or all of the inconvenience resulting will make no difference, if such repairs would have been when made of a mere temporary character and such as would for such future use have required replacing by repairs of a substantial and more expensive character."

Eighth. "The third and fourth floors of No. 67 St. Clair street having been leased to defendants by plaintiff under and by virtue of the same lease which conveyed No. 63 and 65 St. Clair street, the jury must regard the said third and fourth floors of No. 67 and the premises known as No. 63 and 65, as forming one entire building within the meaning of the statute, and the defendants would not be obliged to pay rent for No. 63 and 65 if the damage to No. 67 rendered said building, as an entirety, unfit for occupancy."

Charge to the Jury.

STONE, J.

Gentlemen of the Jury: This action is brought by Albert J. Gilchrist against the partnership and firm of Weil, Joseph & Co. to recover certain installments of rent claimed to be due him for certain premises on St. Clair street, in this city.

It is alleged, in substance, that on January 29, 1885, Albert Gilchrist executed a lease to these defendants of premises known as Nos. 63 and 65 and the two upper floors of No. 67 St. Clair street, in this city, for the term of five years from and after March 1, 1885, and that these defend