Tunbridge v. Read

Peckham, J. The plaintiff, the lessor, covenanted, in the lease to lease a passageway or thoroughfare seven feet wide from the Beaver street entrance, to be used in common as an entrance to and from the building, and to be lighted by the lessor at his own expense. He was also to build two water closets and urinals in the rear part of the basement. The evidence is substantially uncontradicted that no such thoroughfare or passageway was made. New street and Beaver street ran at right angles to each other, and the plaintiff built the passageway from Beaver street to the rear part of the basement where the water closets were; but from that point the passageway, which turned at a right angle in order to reach New street, was a dark room filled with engineer’s supplies and into which a door opened which was kept closed, though not fastened, and this dark passage was in no sense a thoroughfare or passageway to an entrance to be used by people frequenting the basement. In no fair — 41 — sense could it be said to be a fulfillment of plaintiff’s covenant in regard to a thoroughfare. It was nothing of the kind. As the plaintiff left the basement there was substantially but one entrance to it, and that was from the Beaver street side. From the New street side there was a step ladder running up the side of the easterly wall of the building, the steps being two feet seven and a half inches wide, built in the area and landing on a platform with an iron gate at the top. To gain an entrance from the New .street side one must descend this ladder, having first opened the gate, and at the bottom there was a door which gave entrance to this dark passage, filled as I have said with engine supplies, and which was the engineer’s room, and through this passage which was so dark that one could not see his hand before him, the passageway was reached which led to the Beaver street entrance. The architect testified, .and he was not contradicted, that the entrance from New street was nothing but a ladder or a passage scuttle for a fireman or engineer, but not for pedestrians. He also said there was no difficulty in providing an entrance in New street similar to that in Beaver street. The water closets were not placed in the rear part of the basement but over thirty feet from the rear, and only about seventy-five feet from one end of the Beaver street entrance. This basement, or that part which was let, was to be used for offices as stated in the lease, and it is obvious that the provision for a thoroughfare from one entrance to the other on the two different streets was a most important one, being of the very substance of the lease, and which, if not complied with, would absolve the defendants, the lessees, from all obligations to take possession of the premises, or to pay rent in case of not taking possession. It was not a question to be submitted to the jury as to whether there had been a substantial compliance with the covenants of the lease. The evidence as to the state in which the premises were left by the lessor is so far uncon — 42 — tradicted as to have made it the duty of the court to have decided as matter of law that the lessor had not, in that respect, complied with the covenants of the lease. Instead of so doing, the court substantially left to the jury the question, as he said: “You must find either that he took possession or that there was a substantial performance of the agreement,” and to that charge the counsel for the defendant excepted. It is true the court said that the lessor was bound to make a substantial performance of his contract, and he added: “ If he submitted the manner in which he was doing it to either of the defendants or their agent, and they ap. proved of it, that would tend to operate as a waiver of the contract after it was carried out in such particulars as had been assented to by either of the defendants or their agent.”' He also left the question to the jury whether the defendants, or their agent, having power so to do, did accept possession of the premises knowing of their defects, and if' so,, then the defendants were liable. There were thus three questions submitted to them, upon any one of which the jury could find for the plaintiff. As-the case was submitted to them they might find that plaintiff had substantially performed the covenants of the lease; or that the defendants had approved of the manner in which he performed the covenants, and had waived their strict performance; or that notwithstanding the failure to substantially comply,, and notwithstanding there was no waiver during the progress of the work, the defendants or their agents had yet, with knowledge, taken possession of the premises at the commencement of the lease. There was a general verdict for the plaintiff, and who can áay that the jury did not come to the conclusion that there had been a substantial compliance with the covenants made by the plaintiff in the lease ? And yet as matter, of law and upon the whole evidence in the case we say there was no such compliance. Yet the verdict may have been based upon this erroneous finding by the jury. — 43 — The evidence in regard to accepting possession is, also, exceedingly slight. That the defendants, themselves, ever took possession, knowing the condition of the premises, can scarcely be pretended. The chief claim is that possession was given to and accepted by an agent of the defendants, evidenced by the receipt of some keys and by the putting out of a sign, “ To let,” by the agent who was endeavoring to sub-let the basement. That he had the least authority to receive possession of the premises is emphatically denied by the defendants and is not claimed by the alleged agent. The authority rests upon alleged declarations made by one of the defendants to the plaintiff and proved by him. In his evidence the plaintiff gives but two interviews that he had with either of the defendants regarding the leased premises. The agent into whose possession he claims to have delivered the premises, was primarily his own for the purpose of renting the whole building and of collecting the rents when the building was rented. He drew the lease in question and was paid by the plaintiff therefor. Of the two interviews which plaintiff says he had with one of the defendants, the first occurred just prior to the signing of the lease, and the other a short time after November 1, 1883, the time fixed by the lease for its commencement. The references made by the defendant in his first conversation with plaintiff in which the plaintiff says the defendant Stokes told him that Mc-Mahone would act for him (defendant), in the matter, and whatever arrangements the plaintiff came to with Mc-Mahone, would be satisfactory to the defendant, plainly referred to the manner of making the alterations contemplated as to the partitions; where they were to be placed, their height, character, etc. A reading of the plaintiff’s evidence leaves no doubt on that question. The next interview was on the premises and plaintiff says defendant Stokes then remarked: “ McMahone tells me he has had several parties to see him about renting the — 44 — place. I see he has got the sign up.” So much as to the authority of McMahone to receive or take possession for the defendants. The delivery of possession to the agent thus authorized, consisted; as plaintiff says, in leaving some keys to the office doors, in the office of McMahone, during his absence, and telling him afterwards that he had done so. He also says he told Stokes he had left the keys with McMahone, and Stokes said it was all right. When plaintiff saw McMahone after he had left the keys in his office, and told him he had done so, the plaintiff said nothing about Stokes or Read, in connection with the keys, nor did he state why he left the keys with McMahone. He does not claim that he told Stokes why, or for what purpose, he had left the keys with McMahone ; yet, substantially, it is upon this evidence that the plaintiff founds his claim of a delivery of possession of the premises to, and an acceptance by, the defendants through their agent. We think this is exceedingly slight evidence of authority' to receive possession or of any taking of possession by the agent of defendants. This assumed agent was the agent of the plaintiff confessedly to obtain tenants and to collect rents, and everything he did was compatible with his character as plaintiff’s agent. While not deciding absolutely that there was no evidence upon the question of McMahone’s authority, we do say that it was so exceedingly slight as to make it all the more important in presenting the case to the jury for the learned judge to let them know clearly just what points they could take into consideration, and the submission to them of a question which should have been decided by the court, we are the more ready to condemn because of the very slight character of the evidence on the question of possession. Upon the question argued here and raised in the trial court, as to the proper tribunal for the construction of the lease, whether by the court, or on account of its alleged am — 45 — biguity, by the jury, we think it was for the court to determine it. We are of the opinion that the lease did not grant the whole of the basement, but only eighty feet from front to rear.' We have looked at the cases cited by the learned counsel for appellant, and are convinced that they have no application to a case like this. But for the reasons above stated, we think the judgment appealed from should be reversed, and a new trial granted, costs to abide event. Ruger, Ch. J. concurs in result; Daneorth and Finch, JJ. concur,• Earl, J. reads for affirmance; Andrews, J. concurs.