Carolina Mortgage Co. v. Massie

Connor, J. There is no provision in the lease which was executed by the plaintiffs E. W. Sherrill and his wife, Mabel Sherrill, to M. Buchanan, on 5 December, 1928, and thereafter duly assigned to the defendant J. E. Massie, by which the said plaintiffs, as lessors, agreed to keep the Strand Theatre building in good repair. In the absence of [150] such provision, the said plaintiffs were under no obligation to keep the said building in good repair. In Salter v. Gordon, 200 N. C., 381, 157 S. E., 11, it is said: “In the absence of an agreement as to repairs, the landlord is not obligated to keep the building in repair for the benefit of the tenant. Tucker v. Yarn Mill, 194 N. C., 756, 140 S. E., 744; Fields v. Ogburn, 178 N. C., 407, 100 S. E., 583; Improvement Co. v. Coley-Bardin, 156 N. C., 255, 72 S. E., 312.” In the last cited case it is said that by the common law the lessor is under no implied covenant to repair, or even that the premises shall be fit for the purpose for which they are rented. It was, therefore, error to admit evidence at the trial of this action tending to show the bad condition of the Strand Theatre building during the term of the lease, as justifying the abandonment of the premises described in the lease by the defendant, unless, as contended by him, C. S., 2352, was applicable in the trial of this action. The defendant did not allege in his answer any facts to which the statute is applicable, nor did he rely upon the statute as a defense to plaintiff’s recovery in this action. There was no evidence at the trial tending to show such damage to the Strand Theatre building, during the term of the lease, as would have enabled the defendant by compliance with the provisions of the statute to surrender the premises, and relieve himself of liability under the lease. It was, therefore, error to decline to instruct the jury as requested by the plaintiffs. In accordance with this opinion, the plaintiffs are entitled to New trial. Devin, J., took no part in the consideration or decision of this case.