Abadie v. Berges

The opinion of the Court was delivered by Bermudez, C. J. The plaintiff appeals from a judgment sustaining an exception of no cause of action. The object of the suit which is brought by a tenant, is to obtain a judicial declaration that his lease, to the premises will expire on the 31st day of December, 1389, at an annual rent of $2090, subject to a credit of $15 for every Sunday from the 1st day of January, 1837, until the expiration of the lease as renewed. It is stipulated, by an additional clause in the lease, which is made part of tho petition, that the lessee shall have the privilege of running it, for two years more, at $2000 per annum, or $166 66 per month, payable in advance, provided he gives a notice three months previous to the expiration of the lease, occurring on the 31st of December, 1887. The credit is claimed, because of the expiration of tho use and enjoyment of the property, since the 1st of January, 1887, when the “ Sunday law ” went into operation, in consequence of which, plaintiff has been compelled to close tho barroom which ho previously kept open on said day, on said premises — the deprivation causing an injury of $15 per day. Tho lease contains a clause on which plaintiff relies that, should the property be destroyed by fire, or should the lessee be deprived of the use of said premises by some other unforeseen event, not due to any fault or neglect on his part, then the lessee shall be entitled to a credit for the unexpired term of the lease. I. The petition does not set forth that three months previous to the ex [283] piration of the original lease, on.December 31st, 1887, the plaintiff has given notice of his desire to renew it. It was not enough that the contract secured the renewal on the giving of tlie notice. It was essential in order that the renewal should take place, that the notice be actually given at the proper time. The mere fact of annexing the lease to the petition does not inject into that document, an averment which is not in the lease, which, if true, ought to have been specifically set forth in the petition, which was not done. This was a fatal omission, as the court is powerless to authorize an amendment which would insert a clause of action, when none was previously averred. II. The lease contains no stipulation that the landlord warrants against the acts of the law, or of God; without such stipulation, no recovery can be liad, on the well recognized principio that, liability in cases in derogation of common rights, should be specially agreed upon. Troplong, Vte. No. 465-6, Vol. 1. In the absence of such special clause of warranty, the defendant could not he held liable^ for the old maxim reads; “ Aetus legis nemini Jaeit ■injuriam. It therefore follows, that the damage said to have been sustained, if it was occasioned, is injvria si lie da-mno, and therefore not compensable. But if the claim were pressed further and the clause in the lease insisted upon as fully applicable, the plaintiff could still be met by the further answer, that the lease docs not stipulate the destination of the property, viz: that it was leased for the purpose of being used as a coffee-house or barroom and that the petition does not allege that the plaintiff was absolutely deprived of its enjoyment. B. C. C. 2097, 2699 ; 10 L. 20; 11 L. 178. So that it cannot he even argued that the passing of the law, which was adopted in the legitimate exercise of the police power which can never be abdicated, which could and should have been foreseen, has impaired the contract. The clause in the lease refers to the destruction of the property by fine and to the deprivation of tlie use of-the same by some other unforeseen event, in which case the plaintiff was to be entitled to a credit for the unexpired time of the lease. It did not contemplate a case like the present one in which the event could have been foreseen, in which the deprivation is limited and occa [284] sional, or temporary, and. tlie credit asked is partial and not entire. See Merlin Vo. Fait du prince, Laurent Vol. 24, No. 224; Vol. 10, No. 442; Vol. 16, Nos. 323, 331. Jndgment affirmed.