Basketeria Stores, Inc. v. . Shelton

CoNnok, J. With respect to the third issue submitted to the jury at the trial of this action in the Forsyth County Court, the judge presiding in said court instructed the jury as follows: “The court instructs you, gentlemen of the jury, that under a lease of property for the purpose of carrying on therein a store of a certain kind, providing that if the building should be destroyed or rendered unfit for use and occupancy by fire or other casualty, it shall thereupon terminate, such a building is destroyed or rendered unfit for use and occupancy by fire or other casualty, when as a result of a fire or other casualty the building is destroyed or damaged to such an extent that it is unfit for carrying on the business mentioned, and cannot be restored to a fit condition by ordinary repairs such as can be made without unreasonable interruption of the business; that is, such interruption as would cause substantial loss or damage to the business from loss of trade or patronage due to such interruption.” Defendant’s exception to this instruction, assigned as error on his appeal to-the Superior Court, was sustained. In this there was error. The instruction was not erroneous. There was conflict in the evidence as to the extent of the damage to the building caused by the fire, the plaintiff contending that the damage was not sufficient in extent to render the building unfit for use and occupancy, the defendant contending to the contrary. It was the duty of the court, in this situation, to instruct the jury as to the law applicable to the facts as the jury should find them from the evidence. We think the instruction given to the jury by the court was correct. Under the provisions of paragraph 2 of the lease, the defendant, as lessee, was under no obligation to repair the damage to the building *749 caused by the fire. This obligation was, by implication, at least, on the plaintiff, as lessor. See Miles v. Walker, 179 N. C., 479, 102 S. E., 884. The lease was not terminated by damage caused by the fire, under the provisions of paragraph 5, unless the damage was such as to render the building unfit for use and occupancy for the purposes of the lessee. If the damage could be repaired within a reasonable time, resulting in no substantial loss to the defendant as lessee, the lease could not be declared terminated by either the lessor or the lessee, under the provisions of paragraph 5. This is a reasonable rule, just to both lessor and lessee.- We think it must have been within the contemplation of the parties when they entered into the contract. The instant ease is distinguishable from Ragan v. Lebovitz, 195 N. C., 616, 143 S. E., 2. In that case the jury found that the leased premises were rendered unfit for use as a department store by fire. It was held that the result of this finding was not affected by the further finding that the damage to the building was such as could be and was repaired within a reasonable time after the fire. The interpretation of the provisions of the lease to the contrary was incorrect. In the instant case, under a correct instruction as to the law, the jury found that the building was not rendered unfit for use and occupancy by the fire. Archibald v. Swaringen, 192 N. C., 756, 135 S. E., 849, is distinguishable from both the Bagan case and the instant case. It appeared from the pleadings and from all the evidence in that case, that the lessor repaired the damage pursuant to a parol agreement between the lessor and the lessee, entered into subsequent to the discovery of the crack in the dam, through which the water escaped from the swimming pool. The instruction in this case, which we hold to be correct, is in accord with the law as declared in Wolff v. Turner, 6 Ga. App., 366, 65 S. E., 41, cited in note on page 1101 of Anno. Cas., 1913A. Defendant further excepted to the form of the judgment rendered in this action by the Forsyth County Court, and on his appeal to the Superior Court assigned as error the adjudication therein “that the building occupied by the defendant was not destroyed by fire, or rendered unfit for use and occupancy by fire or other casualty.” The judge of the Superior Court remanded the action to the Forsyth County Court, for a new trial, and for that purpose set aside and vacated the judgment. There was, therefore, no specific ruling on this assignment of error. We think, however, that the adjudication has no other or further effect than the answer of the jury to the third issue. Theré was error in the judgment of the Superior Court. For this error the judgment is reversed, and the action remanded to the Superior Court of Forsyth, in order that judgment affirming the judgment of the Forsyth County Court may be entered. Reversed.