Jebeles & Colias Confectionery Co. v. O'Byrne

THOMAS, J. This case is another branch of litigation between the same parties, growing out of and involving the same lease contract and the same breach and forfeiture thereof as was considered in the case of O’Byrne v. Jebeles & Colias Confectionery Co., 165 Ala. 185, 51 South. 633, to which reference is made for fuller particulars. After the termination of that suit, this one was brought by appellant, who is the assignee of the lessor, against appellee, who is the lessee, for a breach of the covenant, contained in the lease contract mentioned, to keep and deliver in repair the building, which was erected by the lessee on said premises under and in pursuance of the requirements of said contract. There are other counts in the complaint, but the assignments of error here are such that our consideration may be limited to the fifth count, dealing, as it does, with the matters aforesaid. The count, which we here condense, alleges, in substance, that the lease contract was made and. entered into on December 30, 1899, by and between Mary Robertson, the then owner of the lot described, and the defendant, O’Byrne, whereby the said lot was leased to the defendant for a period of 10 years, commencing on the date mentioned, upon consideration that defendant was to pay $20 per month [217] during tbe term, and erect on tbe lot a two-story brick building of certain dimensions, and to maintain and keep tbe same in good repair, etc., and to deliver tbe same to tbe lessor in good repair upon tbe termination of tbe lease, wbicb was subject to forfeiture and termination before tbe expiration of tbe period named upon certain defaults of tbe lessee particularly set out; that since the execution of tbe lease and tbe taking possession thereunder by tbe defendant, tbe said Mary Robertson bad conveyed to plaintiff said premises with warranty of title and seisin, Avbereby it became lessor in her stead, and that, although it bad faithfully kept all tbe terms and provisions of tbe contract, the defendant had breached the covenant to keep said building in repair, and bad allowed it to become greatly out of repair (specifying many serious particulars); that on tbe 18th day of March, 1908, plaintiff gave notice to the defendant of tbe termination of, and then terminated, tbe lease, under its terms and powers so providing (stating them), for defendant’s failure to keep the premises in repair; that plaintiff then, upon such termination, attempted to enter possession of the premises, and did obtain possession of a part of tbe premises, but ■was prevented by the force of defendant from obtaining possession of tbe remainder of tbe premises until February 15, 1909. Tbe count then, after other allegations immaterial to tbe inquiry here, concludes with a claim for damages for a failure to keep the building in repair on said March 18, 1908, when tbe lease was termi-' nated. It will be observed that, but for tbe forfeiture by defendant and tbe termination by plaintiff of tbe lease on account thereof, on said March 18, 1908, in tbe doing of wbicb the. plaintiff was sustained by our Supreme Court in O’Byrne v. Jebeles & Colias Confectionery Co., [218] supra, tlie lease would not have expired until December ■30, 1909, 10 years from the date of its execution. However, when the lease was terminated by plaintiff on March 18, 1908, for cause therein provided, it was as much the duty of the defendant to surrender the possession of the premises, and to deliver them in repair, as it would have been at the end of the 10 years, when tiie lease expired by efflux of time. This was no less a termination and end of the lease, under and by its very terms, on account of the forfeiture, than that would have been had there been no forfeiture. The fact that the defendant had sub-let the premises to the end of the 10-year period is immaterial, for the undertenant is chargeable until knowledge of the contents of the original lease, and his right to possession, so far as plaintiff is concerned, terminated when defendant’s right thereto terminated. — Brock v. Desmond & Co., 154 Ala. 636, 45 South. 665, 129 Am. St. Rep. 71. Furthermore, the defendant could not relieve himself of the consequences of his breach of the contract in failing to keep the premises in repair, or deliver them in repair, by offering and attempting, after the breach and after the plaintiff had terminated the contract under its term on account of such breach, to put the premises in repair. His right to perform the contract had ended with the contract, and the plaintiff was under no duty after that to permit him to carry it out.' — 6 May. Dig. p. 189; Danforth v. Tennessee & C. R. Co., 93 Ala. 620, 11 South. 60; McTighe & Co. n. McLane, 93 Ala. 626, 11 South. 117. If he had kept and maintained the premises in repair, as he contracted to.do, they could have been delivered to the plaintiff in repair on any day and at any time. Defendant cannot, therefore, rightfully complain that he did not have time, between the termination of the contract of lease and the demand by [219] plaintiff for possession of the premises, to pnt them in repair for delivering, nor legally insist, that plaintiff should have allowed him after that an opportunity to do so, when his contract bound him to keep them in repair all the time, and deliver them in repair at the termination of the lease — which event, under the contract itself, might occur at any time before the expiration of the 10-year period, at the option of the plaintiff, upon failure of defendant to keep the premises in repair. Nor was it the duty of the plaintiff during the existence of the lease to give defendant notice of needed repairs, nor make demand that they he ma'de; for plaintiff was not in possession, but the defendant was, either himself or through his sub-tenants, with abundant opportunities, far exceeding those of the plaintiff, to discern the waste, as it constantly and naturally developed from the use of the premises, from time and- decay, and to daily see and know what repairs were needed to prevent it. We are, therefore, of opinion that plaintiff’s demurrers to the third and fifth pleas of the defendant, which the reporter Avill set out, should have been sustained, and that there was error in overruling them. Hence the judgment of the court below is reversed and the cause remanded. Beversed and remanded.