Davis v. Simpson Coal Co.

DOWDELL, C. J. This is a suit by the appellee to recover a balance alleged to be due as rent on a lease contract in Avriting for certain described premises. The case Avas tried by the court without a jury. Section 17 of an act “to establish the law and equity court of Mobile” (Gen; Acts 1907, pp. 562-570), is the same in its provision as section 14 of an act creating the city court of Selma (Acts 1875-76, p. 390). The bill of exceptions in the present case does not contain the conclusions and judgment of the court upon the evidence, nor does it show any exception reserved. Under the authority of Morey v. Monk, 142 Ala. 175, 38 South. 265, and author [427] ities there cited, the appellant here can take nothing by the' assignment of error in respect to the rendition of the judgment. The sixth count of the complaint, upon which the case was tried, and to which by agreement of the parties all pleadings and the rulings thereon are directed, sets out in hsec verba the lease contract, the foundation of the suit, but of which the balance claimed as being due for rent arose. A breach of this lease contract by the plaintiff was sought to be set up by the defendant in several pleas, to which demurrers were interposed and sustained. The breach consisted in an alleged eviction of the defendant from a portion of the rented premises by the public authorities of the city of Mobile; the said portion from which the defendant was evicted being a part of a public street in said city. The lease which is set out in the pleadings does not contain the ordinary covenants of-warranty and seisin, but instead thereof Contains the following express covenant: “That for and in consideration of the rents and covenants hereinafter named the said party of the first part does by these present lease to the said party of the second part, heirs and assigns, commencing on the 1st day of January, 1906, and ending on the 1st day of January, 1908, unless this trust is terminated before said date, all the wharf property and rights that are vested in them by virtue of a lease held by them from Z. M. P. Inge, trustee, lying at foot of Congress street,” etc., describing the property. If the defendant entered into the lease contract, with the knowledge that the leased premises extended to and included a part of a public street or highway in the city of Mobile, in the absence of- any covenant in the contract by the lessor as against any interference by the public authorities of the lessee’s occupancy and use of the same, he could not in such case, when evicted by the city from [428] the occupancy of the street, hold the lessor (the landlord) guilty of a breach of the lease contract, and thereby defeat the landlord in his action for rent. — McLarren v. Spalding, 2 Cal. 510; Hitchcock v. Bacon, 118 Pa. 272, 12 Atl. 352. In the case of Copeland v. McAdory, 100 Ala. 553, 13 South. 545, which is cited and relied on here by counsel for appellant, the facts are different from the case before us. In that case the deed contained covenants of seisin and warranty. There are no such covenants here, the only covenant expressed is limited to the rights vested in the lessor “by virtue of a lease held by them from Z. M. P. Inge, trustee,” etc. What these rights are do not appear from the pleadings in this case. Neither of the pleas numbered 2 and 3, and of date of filing April 2, 1908, deny that the defendant had notice, at the time of entering into the contract sued on, that the rented premises covered in part the public street, and being part from which he claims he Avas evicted. It is true plea 3 states “that he did not lmow that part of said property Avas public property,” but it does not aver that this want of knowledge existed at the time he executed the lease contract. Moreover, the description of the property as contained in the lease was sufficient to put him on notice that a part of the rented premises, and the part from which he was evicted by the city, extended into- the public street. There was no error in sustaining the demurrer to these two pleas. For the same reasons pleas numbered 2, 3 and 4, and filed date of April 25, 1908, were bad, and subject to the demurrer interposed. These pleas admit'that the defendant had knowledge of the fact that the portion of the rented premises from which he claims he was evicted by the city was in the public street of the city, and there is no averment in the plea that the lease con [429] tract contained any covenant against eviction by the city. The allegations in the plea of representations made by the plaintiff, on the facts stated in the plea, may be regarded as representations of matters of law, since there is no denial bnt that the plaintiff at the time had a license from the city to the nse of the street. If the representations were as to matters of law, the defendant is presumed to be as well informed in this respect as the plaintiff as to the rights of the parties in the use and occupancy of the street, and the liability to be at any time removed therefrom by the city. The fourth plea concludes Avith a general averment of fraud in the execution of the contract. A charge of fraud, Avithout a statement of facts constituting the fraud, is but a statement of a conclusion of the pleader, and insufficient in pleading when assailed by demurrer, the demurrer to. the fourth plea, among other grounds, takes this point. It appears from the record that a demurrer was sustained to the fifth plea, both as originally filed and as amended; but this ruling is not assigned as error. The fifth plea passing out on demurrer, the special replication to it also Avent out. The overruling of the demurrer to this special replication, if error, was error without injury, since the replication went out Avith the plea to Avhich it was addressed. There was no error in admitting evidence of the lease from Z. M. P. Inge, trustee. . This lease was referred to in terms in the lease contract sued on, and was thereby made relevant. There was no error in admitting in evidence the acts of the Legislature referred to in the Inge lease contract. The eAddence of the witness Inge as to his consent to the transfer of the lease was properly admitted. The lease provided that there should be [430] no subletting without his consent. This evidence,, therefore, was competent and relevant. We find no reversible error in the record, and the judgment is affirmed. Affirmed. Simpson, Denson, and Mayfield, JJ., concur.