Cook & Co. v. Anderson

OLOPTON, J. The plaintiff leased to the defendants a building on Commerce street in the city of Montgomery, “for occupation as a grocery store and not otherwise,” for one year from the first day of October, 1886, at a rental of one thousand dollars, payable in equal monthly installments. Plaintiff brings the suit to recover the installments due on the first day of March, April and May, respectively, 1887. The defendants seek to avoid the payment of the rent, in consequence of a fire which occurred November 29, 1886, and so damaged the leased building as to render it unfit for the purposes for which it was leased, in connection with the entry of the plaintiff after the fire to make repairs. The record presents only questions of law arising on facts admitted by both parties. The lease, which is in writing, contains an express covenant to pay rent for the term, and contains no stipulation for the cessation of the rent in the event the building is destroyed, nor any covenant that the lessor shall rebuild or repair. The settled rule is, that a lessee of premises, destroyed during the term by unavoidable accident, is not relieved from an express promise or covenant to pay rent, unless he protects himself by a stipulation that the rent shall cease in such event, or unless the lessor covenants to rebuild or re.pair, or unless the destruction is of the entire subject-matter of the lease, so that nothing remains capable of being held or enjoyed, which operates a dissolution of the tenancy. Chamberlain v. Godfrey, 50 Ala. 530; Warren v. Wagner, 75 Ala. 188. The destruction was not entire. Only a portion of the building was damaged. The defendants remained in possession of, and enjoyed that part of the building which was not destroyed, keeping a small portion of their goods therein. The plaintiff was entitled to recover, unless some available defense exists, other than the partial destruction of the building. 2. Defendants insist that the entry of plaintiff, for the purpose of making repairs, amounted to an eviction, and discharged them from the payment of rent during the continuance of the eviction. An eviction, to be sufficient to suspend or extinguish the rent, must be tantamount to an expulsion, or amotion, depriving the tenant of possession and enjoyment of the leased premises. It may be total, or partial. There are authorities which hold, that when the eviction is by the lessor from a part of the premises, the tenant may elect whether to abandon them entirely, and put an end to [104] tbe entire tenancy and rent, or retain possession of tbe part that remains, free from any liability whatever for rent during the eviction, which, Mr. Washburn says, “seems now the settled rule of law, both in England and generally in the United States.” — 1 Wash. Real Prop. 564. In this State, a different rule, it seems, has been settled. In Warren v. Wagner, supra, Brickell, C. J. says: “Whenthe landlord enters, and dispossesses the tenant of a part of the premises, a discharge of the entire rent will not result, unless it be shown that the tenant surrendered. or abandoned possession entirely. Nothing less than an entire abandonment or surrender will operate a dissolution of the tenancy, and a suspension or discharge of the whole rent. The rent is discharged only pro tanto, to the extent of the value of the use and occupation of the part of the premises of which the tenant is dispossessed, if he remains in undisturbed possession of the residue.” The same principle was virtually asserted in Chamberlain v. Godfrey, supra, and Crommelin v. Theiss, 31 Ala. 412. The question, however, is not necessarily presented by the record, which renders it unnecessary for us to consider it, or to express any opinion as to which is the sounder and better rule. The admitted facts are, that plaintiff only entered for the purpose of repairing the damaged part of the building, and that he so entered with the knowledge and consent of defendants, who resumed possession of the entire building as soon as the repairs were finished. An eviction is, in its nature, wrongful. There can be no eviction, which will operate to suspend the rent, without agreement, express or implied, where it is with the assent of the lessee, for a specified purpose, and temporary in its duration, and is not by the assertion of a superior claim or right. The entry of, the plaintiff, with the consent of the tenant, for the purpose of repairing, in order to render the premises more convenient and beneficial for his use and enjoyment, does not amount to an eviction. — Peterson v. Edmunson, 5 Harring. 378. But, it is further insisted, that the entry of plaintiff with the assent of defendants was the equivalent of a rescission of the rental contract; and Magaw v. Lambert, 3 Penn. St. 444, is cited by counsel as sustaining this proposition, where it is said: “If the landlord took possession of the ruins for the purpose of rebuilding, without the consent of the tenant, it was an eviction; if with his assent, it was a rescission of the lease; and in either case the rent was suspended.” In that [105] case, the building was destroyed, and tbe landlord took possession of tbe remaining premises, was bargaining for tbe cleaning of the cellar, and was offering to sell tbe property and give immediate possession — was exercising acts of ownership. Tbe correctness of tbe rule may be conceded, when applied to a case where tbe entry of tbe landlord, with tbe assent of tbe tenant, permanently amoves him from tbe possession and enjoyment of tbe entire premises; but it is inapplicable when the entry is of only a part of tbe premises, is temporary, without intention of depriving tbe tenant of tbe use and enjoyment of tbe premises, and is made for tbe sole purpose of rendering them fit for bis occupation during tbe residue of tbe term. 3. Tbe defendants further seek to set off against tbe demand of plaintiff tbe damages which they suffered by reason of tbe fire. Tbe admitted facts are, that plaintiff owned and occupied tbe adjoining store, “as a builder’s material supply store;” that be bad in stock and in tbe basement of tbe store paints, oils, varnishes, lime, and some cotton; and that tbe fire originated in tbe basement of plaintiff’s store, and was communicated to tbe building occupied by defendants, greatly damaging tbe property. It is further admitted, that tbe origin of tbe fire is unknown, but that “plaintiff was not personally instrumental in causing tbe fire, and bad no agency in causing it, except by reason of keeping inflammable materials in tbe cellar store, as above stated.” Tbe contention of defendants can be founded only on tbe ground, that keeping inflammable materials for tbe purposes of trade and traffic, in tbe basement of a store in a city, is a private nuisance per se, which makes tbe plaintiff liable for adtual injury resulting therefrom, without regard to negligence on bis part. Keeping explosive substances in large quantities in tbe vicinity of dwelling-houses or places of business, is ordinarily regarded a nuisance, whether so or not being dependent upon tbe locality, tbe quantity, and tbe surrounding circumstances. But negligence, or want of ordinary care in tbe manner of keeping, or in keeping large quantities, is requisite to impose a liability to answer in damages occasioned by an accidental explosion or fire, which it is incumbent on tbe party affirming to prove. — Wood’s Law Nuis., § 140. Tbe admitted facts do not tend to show' any thing in tbe manner of keeping tbe materials mentioned, or in the way they were stored, or in their use, or in tbe conduct of tbe plaintiff concerning them, from which negligence can be inferred; and tbe mere fact of [106] •keeping suck materials in store for trade is not sufficient negligence. The rule governs which exonerates a party from liability when engaged in a lawful business, and free, from negligence. Affirmed.