Miles v. . Walker

*483 Hoke, J. In States like ours, basing their system of jurisprudence on the principles of the common law, it is the accepted position tbat where a store building or other is held under a lease, conveying also the present right to the soil, and the same is destroyed by accidental fire, or so injured as to be unfitted for its principal purpose, the lessee is not relieved of the obligation to pay the stipulated rent during the term unless the contract so provides, or the landlord is under a covenant to repair. Gates v. Green, 4 Paige Chan., p. 355; McMullan v. Solomon, 42 Ala., 356; Viterbo v. Friedlander, 120 U. S., 708-712; 16 R. C. L., pp. 956-57, title, Landlord and Tenant, sec.. 465; McAdam on Landlord and Tenant, sec. 198; Taylor bn Landlord and Tenant (9 ed.), p. 468. In the citation to McAdam, the general principle is stated in part as follows: “It seems to have been tbe doctrine of tbe common law rent issued out of tbe land itself regardless of tbe erection thereon, and, therefore, tbat tbe destruction of tbe buildings on tbe leased premises, or those becoming unfitted for use, did not discharge tbe obligation of tbe tenant to pay tbe rent as agreed upon for tbe full terms.” Tbe position referred to has been modified to some extent by statute in this State, Rev., 1992, and in which it is provided tbat where a building is destroyed or rendered unfitted for use during tbe term, without negligence on tbe part of tbe lessee or bis agents or servants, and there is no agreement in tbe lease respecting repairs and tbe use of tbe bouse, was tbe main inducement for tbe hiring, tbe lessee may surrender tbe estate by writing to tbat effect delivered within 10 days from tbe damages, and on paying tbe rent accrued and apportioned as to tbe remainder to tbe time of tbe injury, etc., etc. Tbe law in question, however, enacted for tbe benefit of tbe lessee, has no bearing on tbe instant eases, as tbe lessee is insisting on certain rights arising to him under tbe provisions of tbe lease, and tbe fact tbat tbe statute was enacted is to some extent a legislative recognition tbat without its provisions tbe principles of tbe common law would prevail. Again it is held as apposite to tbe facts presented — tbat while a landlord is under no implied obligation to restore or repair a building which bad been destroyed or injured to tbe extent and in tbe manner suggested, if be does enter and make tbe required repairs without further agreement on tbe subject, tbe building so rebuilt or restored will come under tbe provisions of tbe lease as far as tbe same may be applied, and for breach tbe landlord may be held liable in damages. Smith v. Kerr, 108 N. Y., 31, cited and approved in Taylor on Landlord and Tenant, sec. 329. A proper application of these principles is in full support of tbe recovery bad by plaintiff in tbe cause, and we find no reason presented for disturbing tbe results of this trial. *484 It is chiefly urged for error that the court excluded certain evidence offered by defendant as tending to show a forfeiture of the lease by reason of failure to install the shelving designated in the contract of lease. It was not contended that this would follow from the stipulations contained in the written lease. This, as his Honor ruled, clearly allowed plaintiff a reasonable time to procure and put up the shelving. Nor does it come within the provision of the lease forfeiting the same for nonpayment of rent. The liability to repair when the same exists and to pay rent being as a rule distinct and independent obligations. McAdam on Landlord and Tenant (3 ed.), p. 1259. ' Defendant, however, insists that by reason of a further additional agreement in parol between the parties made at or before the execution of the written lease, the obligation to put in the shelving was immediate and in the nature of a condition precedent to the maintenance of plaintiff’s rights. A perusal of this proposed evidence will show, however, that it consisted of more general statements or assurances given when the parties were consulting together as to the terms of the contract they were expecting to make, to the effect that the shelving would be “put in at once,” etc. They seem to be too indefinite to be allowed contractual effect, and in any event they are controlled by the terms of the written lease that the parties afterwards executed. The delay about the shelving, slight in itself, is very satisfactorily explained in the testimony, and the- case, in our opinion, comes clearly within the wholesome principle that when persons have reduced their contract to writing, plain of meaning, parol evidence as to contemporary or precedent “assurances and understandings” in conflict with the written agreement is incompetent. Mfg. Co. v. McCormich, 175 N. C., 277, citing Woodson v. Beck, 151 N. C., 145; Walker v. Cooper, 150 N. C., 129; Walker v. Venters, 148 N. C., 388; Mudge v. Varner, 146 N. C., 147; Bank v. Moore, 138 N. C., 532. Again it is objected that the court, over defendant’s objection, allowed plaintiff to say that he had sublet the property at $50 per month, the objection being put on the ground that this sublease was in writing, but as held in numerous cases on the subject, the rule excluding parol evidence of the contents of a written paper or document applies only in actions between the parties to the writing, and when the enforcement of obligations created by it is substantially the cause of action, it does not prevail as to collateral matters though they may be relevant to the inquiry. This exception must also be disallowed. Morrison v. Hartley, 178 N. C., 618; Holloman v. R. R., 172 N. C., 375; Ledford v. Emerson, 138 N. C., 502. Defendant excepts further that the lessor is shown to be a married woman, and her husband not having joined in the lease or given his written assent thereto, and the lease being for more than three years, is *485 avoided by sec. 2096 of Revisal, and is expressly excepted from the provisions of the Martin Act, Laws 1911, ch. 109, making a married woman to contract and deal as if she were a feme sole. It may be that under the effect and operation of the statutes referred to, no specific performance of this lease could be enforced, but in a contract of the kind presented, our decisions on the subject are to the effect that in case of breach, a married woman may be held liable in damages, and plaintiff’s recovery for such breach must therefore be upheld. Sills v. Bethea, 178 N. C., 315; Everett v. Ballard, 174 N. C., 16; Warren v. Dail, 170 N. C., 406. We find no reversible error in the record, and judgment for plaintiff is affirmed. No error.