Smith v. McLean

Moran, J. Appellant’s first plea is bad. It alleges no facts, but states a mere legal conclusion as arising on an event which it recites, but does not allege to have occurred. The demurrer to it was therefore properly sustained. The question which appellant’s counsel have so elaborate^ discussed, viz., the rule to be applied when a building in which apartments or rooms are leased is entirely destroyed by fire without the fault of the lessee, by the elimination from our consideration of the first plea becomes a mere moot question in this case and one which we are not called upon to decide. The authorities cited and relied on by counsel relate to cases where there was a total destruction of the building, and when the space occupied by the tenant could scarcely be more definitely designated after the tire than by imaginary lines drawn in. the air. Graves v. Berdan, 29 N. Y. 498 ; Austin v. Field, 7 Abb. R. N. S. 29; Ren v. Merchants’ Ex. Co., 3 Edw. Ch. 315 ; Buerger v. Boyd, 25 Ark. 441. The principle announced by these cases has no proper application where the demised premises are merely damaged by fire so as to be temporarily unfit for occupancy, but are left capable of repairs within a reasonable time, and when no rebuilding or reconstruction of the entire edifice containing the rooms has become necessary. Appellant’s plea, alleging that the premises were so badly damaged by fire that they were ousted and deprived of the possession and enjoyment thereof, is a good plea only because of the stipulation in the lease providing that in case the premises were damaged by fire no rent should be paid while the premises were unfit for occupancy; and appellee’s replication that, within a reasonable time after the fire, said premises were repaired, and then and there became fit for occupancy, of which appellants had notice, was a good replication to' said plea, and the demurrer thereto was properly overruled. It is the general rule of law that a lessee has no relief against an express covenant to pay rent unless he has protected himself by a stipulation in the lease. The stipulation in the lease under consideration protected the lessees from liability for rent while the premises, if damaged by fire, should remain unfit for occupancy — no longer — and the manifest intention of the parties, as shown by the lease, was that upon the premises being repaired and rendered fit for occupancy, and being open to the occupancy of the lessees, the covenant to pay rent should again become operative. The stipulation was for the benefit of the lessees, and without it they would, under the circumstances of this case, have been held on their covenant for the entire rent accruing after the fire. Izon v. Gorton, 5 Bing. N. C. 501; Peck v. Ledwidge, 25 Ill. 109. It is contended by appellants that they were evicted from the premises by the acts of appellees. It appears that after the fire some of the goods of appellants were removed by them from the basemént portion of the leased premises to tlie first floor of the building for convenience. Some remained in the basement with the rubbish and debris. Some one representing the appellees or the builders, who were repairing the building, stated that the goods of appellants were in the way, and requested appellants to move them. They did "not do so at once, being busy, but after some time they took the goods away. These facts do not show an eviction. ¡Nothing done or said by appellees indicates an intention on their part that appellants should no longer occupy the premises. It was necessary for the landlord to enter upon the premises to make the repairs and render them fit for occupation, and the removal of the goods and boxes out of the way of - the builders was also necessary to the operation being carried on, and the record is conclusive that neither party regarded the removal of the goods under such circumstances as affecting the relations created by the lease. Morris v. Tillson, 81 Ill. 607, 623; Walker v. Tucker, 70 Ill. 527; Alexander v. Dorsey, 12 Ga. 12. Our conclusion is against appellants upon the points urged by them against the judgment, and the same must therefore be affirmed. Judgment affirmed.