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Cuyahoga Common Pieas.

ants, Weil, Joseph & Co., agreed to pay for such premises the sum of $2,500 a year as rent, $300 being for rent for said two upper floors in the building known as No. 67. The rent was payable in four equal installments of $625 each at the expiration of each and every three months. the month of March being first by itself, and then after that, commencing April 1, 1885, was payable in four equal installments of $625 each quarter.

It is alleged that the defendants, by said written lease, covenanted to deliver up said premises at the expiration of said term in as good condition and repair as the same shall be put in by the second party at the commencement of said term, the natural wear and decay excepted.

It is alleged that upon the making of this lease, or after it was made, this firm entered into the possession of the premises, and so continued in possession until the happening of this fire.

It is alleged, too, that on July 27, 1887, Albert Gilchrist assigned said lease to this plaintiff, Albert J. Gilchrist.

It is further alleged that about January 1, 1888, Weil, Joseph & Co. vacated the premises and gave to the plaintiff the keys thereof, but that the plaintiff refused to accept the surrender of the premises, or to release the defendants from their covenants or obligations under the lease, but that he then notified the defendants that he would take the keys, rent the premises only for and on their account, and would hold them, as such partners, responsible for any damage done said property, or hold them responsible for any deficiency in the rent and for breach of any of the other covenants of the defendants, as lessees. He says that afterwards on March 1, 1888, he rented the premises to Stinchcomb, Hendry & Co., for an annual rental of $2,000, which was the highest rent he could then obtain for the premises, and payable at the same time and in the same manner as said defendants had paid. He says that since that time these defendants have not performed the covenants or the conditions of the lease originally made with them; but that on the first of April, 1888, they did not pay the rent then due which he says under the lease was $625, and that their tenants, Stinchcomb, Hendry & Co., who had entered into possession under this second lease paid only $166.66, and on July 6, of that year, 1888, these defendants, as partners, disregarded their said covenant to pay rent due as claimed for that quarter-failed and refused to pay said rent—but that they paid through their said tenants, or those to whom the premises were subsequently let, Stinchcomb, Hendry & Co., only $500, wherefore he says there is due to him, this plaintiff, from these defendants, as rent for said premises, the sum of $583.34, with interest on $458.34 from April 1, 1888, and interest on $125 from July 1, 1888, and it is for that amount that a verdict is sought at the hands of this jury.

I do not know whether the jury clearly comprehend just how the computation has been made upon which this statement is made; but, as I understand it, the action is to recover the rent for two quarters, one

Gilchrist v. Weil, Joseph & Co.

quarter drie on April 1, and another on July 1, 1888, and giving credit for different sums this plaintiff realized from Stinchcomb, Hendry & Co., to whom he says he let the premises with the view of getting as much as he could out of them, and applying the money so received upon the lease which he still claimed was in operation as between himself and these defendants. As I recollect it, it is claimed that this second firm, Stinchcomb, Hendry & Co., went into possession about March 1; so that upon April 1, the plaintiff received from them whatever was due him for one month, perhaps $166.66; and he gives credit on the first quarter's installments, which was $625; that is to say, his claim is that there was due him on April 1, from Weil, Joseph & Co., $625, but having gotten out of that quarter $166.66 from Stinchcomb, Hendrey & Co., giving them credit for that amount, left a balance due to him of $458.34.

Then when he comes to the next quarter his suit is to recover whatever is still due him after giving credit for the full quarter's payment as made by Stinchcomb, Hendry & Co., which was on the basis of $500 a quarter. After giving them credit for $500 upon the amount he then claimed to be due, the $625, left a balance of $125; so that you see the action is to recover what is left as due to him upon these two quarters; on the first quarter $458.34 and on the second quarter $125, claiming interest on each quarter from the time it became due. That is the plaintiff's cause of action.

To this petition the defendants have answered admitting, first, that they are partners as is alleged in the petition. They admit that on January 29, 1885, one Albert Gilchrist, by written lease, duly demised to them under said firm name, the premises known as Nos. 63, 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 it is admitted that they, by the terms of the lease, agreed to pay the sum of $2,500 a year rent for the premises, and to pay it as stated in the petition; that is, for the month of March, 1885, they were to pay the amount due for one month, and that thereafter it was payable in quarterly installments of $625, and payable at the expiration of each and every three months during the continuance of the lease.

They admit that they entered into the possession of these premises under this lease, and that they paid rent for the same at the times and in the sums called for in the lease until January 1, 1888.

They admit that about January 1, 1888, they vacated the premises, and gave the keys thereof to the plaintiff, but they deny all the other allegations contained in this petition; that is, they deny all the allegations in the petition that are not expressly admitted. There is, perhaps, therefore, I take it, a denial of the assignment.

Mr. Henderson: "There is no dispute of the fact though."

Cuyahoga Common Pleas.

The Court: "There is no dispute now of the fact that it was assigned by the original lessor, Albert Gilchrist, to the present plaintiff, Albert J. Gilchrist."

By way of a further and second defense they say that on December 29, 1887, they were in possession of the building and premises in this petition described, and under the lease, as therein set forth; that on or about that date, namely, December 29, said premises and building were, without any fault or negligence on the part of said defendant, destroyed and so injured by the elements and other causes as to be unfit for occupancy, and said defendants thereupon surrendered possession thereof to the lessor. And for that reason they say they are not liable for any further payments of rent, and that by reason of the fire and the result of it, or by reason of the destruction or injury to the premises by the elements, they were released from all further obligation to pay rent, and that at that time they vacated the premises.

The plaintiff, Albert J. Gilchrist, replying to this answer denies what is set up by way of a second defense ; that is, denies this defense wherein it is alleged that by reason of the destruction or injury to the building the premises became unfit for occupancy. He denies that any such condition of things as that occurred, or that whatever did occur there was of such character as that it worked out a cancellation of the lease, or the right to surrender these premises and the termination of the lease as to the defendants. Now, that makes up the issue to be determined in the case; and so far as the jury is concerned the principal question for your consideration arises upon this second defense, namely, whether the fire that occurred there should have the effect, or does have the effect, under the facts as they exist, and under the law, whether it gave to these defendants the right to terminate the lease,'to vacate the premises and terminate the lease.

This defense is one that is claimed they have the right to make by virtue of sec. 4113, Rev. Stat. That statute is as follows: "The lessee of any building which, without any fault or neglect on his part, is destroyed or so injured by the elements or other cause as to be unfit for occupancy, shall not be liable to pay rent to the lessor or owner thereof after such destruction or injury, unless otherwise provided by written agreement or covenant, and the lessee shall thereupon surrender possession of the premises so leased."

Early in the progress of the trial I had occasion to express an Opinion as to one legal proposition that was submitted to the court, it being claimed that under the provisions of this lease there was a covenant to repair, even against loss by fire. I then expressed the opinion that the covenant in this lease to deliver up the premises in as good condition and repair as the

shall be put in by the second party at the commencement of said term, the natural wear and decay

same

Gilchrist v. Weil, Joseph & Co.

excepted, was not a covenant to repair as against a loss to the premises, or injury that might result to the premises by fire or by the elementssome extraordinary injury to the property like destruction by fire or by water, but was only a covenant to make such repairs to the premises as would ordinarily arise under the occupation of such premises—such as inight ordinarily arise, but not an extraordinary condition resulting from destruction of the premises by fire or other unexpected and unusual causes; so that all I need to say to the jury now upon that subject is that the lease contains no provision that prevents the operation or application of this section of the statute in this case. Therefore it is a question that will be submitted to the jury as to what extent they were destroyed or so injured, and whether to that extent that they became unfit for occupancy. This being set up by way of defense the burden rests upon the defendants to establish by a fair preponderance of the testimony this allegation, this defense, namely, that the premises occupied under this lease were, without any fault or negligence on their part, destroyed, or so injured by the elements as to be unfit for occupancy.

Now, it is important for the jury, in the view I take of the case, to consider very carefully, all the testimony that has been presented here upon the trial bearing upon that question. You have been upon the premises, and by reason of that visit you are probably better able to appreciate and apply and understand the testimony as it has been submitted here upon the trial. The object of the visit was that you might

. better understand the testimony, not for the purpose of gathering facts there from which to make up your judgment, but to see the situation, so that you might understand the testimony as it should be given upon the triai.

Now, it becomes important for the jury to determine from the testimony offered here what was the condition of these premises immediately after the fire that is said to have occurred on or about the night of December 27, 1887. There is no question but that the property or premises leased covered Nos. 63 and 65 St. Clair street, which has been spoken of here as a double store, as I understand it, having four floors, and that it as well comprised two floors, being the upper ones in No. 67, in the building next adjoining Nos. 63 and 65. The testimony has been submitted here for the purpose of aiding you in determining the extent of the injury to the premises at that time. To what extent were they damaged by fire? To what extent were they injured? What was the effect of this fire upon the building, upon the premises occupied by these defendants? To what extent did it render them unsuitable for occupancy?

It is claimed on the part of the defendants that the fire extended to the burning out of one or more floors; that a large portion of the roof was destroyed, and that in the effort to extinguish the flames a large Cuyahoga Common Pleas

quantity of water was thrown into the building, flooding, to some extent their premises, rendering it impossible, for the time being, to heat their building, flooding the cellar or the basement so as to put out the fire, and and that it affected or perhaps to some extent injured the heating apparatus, and from all that happened, or the result of the whole was to render these premises unfit for occupancy; that they were so destroyed or injured that they were, for that reason, unfit for occupancy.

On the other side it is contended that the extent and effect of this fire were not as claimed on the part of the defendants, nor was the effect of it to render these premises unfit for occupancy, claiming as to the double store that there was no fire in that part of the premises and that there was no general flooding of the building; that while there may have been some leaking of the water down the wall, and that the water, in some way, found its way into the basement, yet, it did not render the premises, for that reason, unfit for occupancy; that in No. 67, while the effect was to render it necessary to repair the floor in part upon the third floor and perhaps almost wholly on the fourth floor, that still it did not render the premises, as a whole, unfit for occupancy; that only a small portion of the roof had been destroyed, mainly the skylight, and that it was of such small dimensions, the part injured as compared with the whole, that it was in a condition that could be easily remedied, and that it did not constitute such an injury to the property as this statute is intended to meet; in other words, that it did not constitute such injury or such destruction as made, within the language of the statute, these premises unfit for occupancy.

Now, that, gentlemen of the jury, is a question of fact that you are to determine from the testimony submitted here and one that the court cannot aid you about. But there are some propositions of law that may be given as an aid to you in determining that question in the case.

Let me invite your attention again to the words of this statute, a part of this section: "The lessee of any building which, without any fault or neglect on his part, is destroyed or so injured by the elements, or other cause, as to be unfit for occupancy, shall not be liable to pay rent to the lessor after such destruction or injury," etc.

The question, then, is whether in this case there was such a destruction or such an injury to the premises by the fire and water-by what occurred at that time resulting from the fire-as that it became unfit for occupancy; because, to justify a lessee in abandoning premises, or insisting upon the termination of a lease, the injury or destruction must go to the extent of rendering the premises unfit for occupancy. It must amount to such destruction as that the premises are unfit for occupancy; not that there must be an absolute wiping out of the building—its absolute destruction from the face of the earth—but it must be such an injury or the injury must go so far toward total destruction as that it is no

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