Boteler v. Espen

Mr. Justice Green delivered the opinion of the Court, January 23d 1882. It is certainly true, that when the landlords in this case exacted from the tenant a covenant that he should make all necessary repairs to the premises demised, they thereby consented that such repairs should be made. But the question that arises is, whether this is the kind of consent, which is within the contemplation of the Act of 1868, subjecting the building of an owner to a lien, for repairs done by the tenant. We held in McClintock v. Criswell, 17 P. F. S. 183, that the consent intended by the act is an absolute consent consistent with the right to do the work on the credit of the building. In that case, it was agreed that the work should be done at the cost of the tenant, and for that reason, we decided that the consent of the landlord must be regarded as a qualified, and not as an absolute consent, .and therefore the act was inapplicable. In other words, the circumstance that the tenant and not the landlord was to defray the expense of the improvement, was conclusive that neither the landlord, nor the building, was to be subject to the cost of the work. In Hall v. Parker, 8 W. N. C. 325, the demised premises were held subject to the lien because, although the tenants were to do the work at their own cost, yet they were to be practically repaid, by an abatement of rent for the first year, from $600 to $5, so that in effect the cost was really to be borne by the lessor. Here also the test of the question was, who was to incur the cost of the repairs ? If the landlord, the building was subject to the lien, but if the tenant, it was not. The particular form of words employed was not regarded, but rather [316] the substance and meaning of the contract. How is it in the present case ? The building leased was the Clarendon Hotel, No. 1020 Chestnut street, Philadelphia; the term was for five years, and the rent was, for the first year $2,000, for each of the next three years $2,500, and for the last year $3,000. By the terms of the lease the tenant was to perform a number of covenants, and amongst the rest, was one by which he agreed to “ make all necessary repairs to the premises demised, including the roof and windows. ” He was to make no alterations, or improvements without the lessors’ consent, and at the expiration of the term, he was to leave all such alterations and improve-1’ ments on the premises without cost to the lessors. There was no express stipulation that the tenant, was to make the necessary repairs at his own cost. But he was to make them, nevertheless, and he was to do this in addition to paying the rent. There was no provision, that the repairs should be made at the cost of the lessors, or that they should be deducted from the rent, or that the rent should be made lower, on account of the repairs being made by. the tenant. The whole amount of the rent was to be paid according to the terms of the lease, and all necessary repairs were to be made. They were not to be made by the landlord, they were to be made by the tenant without any provision for reimbursement. We are of opinion that in such circumstances, the obligation of the tenant to pay the cost of the repairs, is as clear and undoubted, as if words to that effect ■were incorporated in the lease. Had they been written in the lease, the ease would have been the same as McClintock v. Criswell. But in legal effect they are there. The obligation of the tenant to make the repairs includes the obligation to pay for them. It is his covenant, Ms act, and must be performed by him, and necessarily at his cost. Clearly, then, these repairs are not to be made at the cost of the lessors, and that being so, it follows, that the consent given by them, to their being made by the tenant, is not the unqualified consent which, as we have heretofore held, was essential, to subject the building to the operation of a mechanic’s lien, under the Act of 1868. In McClintock v. Criswell, Williams, J., in delivering the opinion of the Court, said : “ It seems to us, that the consent intended by the Act, under which the claim in this case is filed, is an absolute consent — such a consent, as is consistent with the right to do the work, on the credit of the building, though it may not expressly authorize it. It must not be clogged with any such ' condition or qualification as is inconsistent with the right to charge the building with the cost of the work, or which impliedly forbids it.” We can not think that when these lessors required of their tenant, that he should make all necessary repairs, they meant thereby, that he might .do so on the credit of the [317] building. The absolute covenant of the tenant, that he would make the repairs, as well as pay the rent, without any provision for reimbursement, or compensation in any manner, is certainly inconsistent with the right to charge the building with the cost of the work. The suggestion, that the rent for the first year is $2,000, while for the next three years it is $2,500, affords no inference that the difference of $500 was intended as a compensation for the cost of repairs. It would require an express agreement, that the diiference was made on that account to give it such effect, as was the case in Hall v. Parker, supra. The abatement of $500 for the first year, is counterbalanced by an increase of $500 during the last year; but independently of that, it is not at all uncommon to make leases, especially of buildings used for hotel purposes, upon a rising scale such as this, as an inducement to tenants. Being of opinion that it was the intent of the parties to this lease, that the cost of the necessary repairs was to be borne by the tenant, we can not consider the consent of the landlords such as is required to subject their property to a lien for that purpose. Judgment affirmed.