O'Byrne v. Jebeles & Colias Confectionery Co.

McCLELLAN, J. — As the solicitor for complainant (appellant) concedes, the theory of the bill confesses a forfeiture under the terms of a 10-year lease made between complainant and the respondent’s assignor, and, so confessing, invokes equity jurisdiction for relief [186] against the forfeiture.- — 1 Pom. Eq. § 453. The theory of the bill is good, but the vital question is whether complainant makes out a case for his relief. Mrs. Robinson, respondent’s assignor and grantor, owned a vacant lot in Birmingham. She leased it to complainant for 10 years, the termination of which was to be December 31, 1909. The consideration of the possession, use, and enjoyment of the lot was stated to be the erection within 90 days and without cost to the lessor of a described brick building on the lot and the payment to the lessor of $20 each month during the continuance of the lease. After about eight years of the term had expired, the respondent declared the lease forfeited because of breaches of the conditions whereon the life of the lease was expressly made to depend of course upon the option of the lessor or her successors in right. These breaches of the covenant were enumerated in the notice exhibited in the bill, and the reporter will summarize them. There would.be no hesitancy in upholding the equity of this bill if the result -of the lessee’s omission was to breach covenants intended to assert the prompt payment of money rent, and this without reference to whether the lessor had entered or not. — Attalla Mfg. Co. v. Winchester, 102 Ala. 184, 14 South. 565; Root v. Johnson, 99 Ala. 90, 10 South. 293. But the situation in this instance involves more .than that. It is evident from the lease -that the use for the time of the lessor’s lot was to be largely compensated for by the edifice to be placed on it. The termination of the term would leave the lessor with a lot improved by the building so erected by the lessee.. Contracting, as they did, with reference to such a status, it was well anticipated to the lessor’s protection that maintained repair and sanitation should be particularly required, even to the end [187] that, if not done, the lease should terminate. Indeed, and as is obvious, omission or neglect in one, or both, of these particulars, would necessarily tend to the serious impairment, if not practical destruction, of the very essence of the lessor’s inducement to the lease, viz., the building, constructed as specifically provided and maintained in repair and sanitary condition. The period of the lease was such as to give time and climate opportunity to mar the structure. As the structure became less in good repair, the lessor’s consideration, in part, would wane in value. The effect of time and climate upon ordinary buildings of the character of this, to say nothing of their possible injury from occupancy, is often silent and usually gradual, and the results therefrom destructive of the building’s integrity. Diligence, it may be safely said, is necessary to detect, and in a measure to necessarily anticipate, the effect of the passing of time, of wind, and weather. It was within the covenants of the lease that the lessee should guard and repair the natural effects and results indicated. Such care and duty were assumed by the lessee.' Under these circumstances, we think the doctrine thus announced in 1 Pom. Eq. § 454, applicable here: “Equity will not, under ordinary circumstances, relieve against a forfeiture arising from the breach of other covenants contained in a lease, on the ground that no exact compensation can be made. Among these, covenants for breach of which no relief can ordinarily be given is that to repair generally, or to make specific repairs. * * *” The learned author cites in note 1 a number of English authorities aptly supporting his text. These have been read, and, if anything, they put the matter more strongly than the text. Aside from the controverted breach of the covenant in respect to sanitation, the bill does not deny want [188] of repair, in most, if not all, of the particulars enumerated in the notice declaring the termination of the lease. - In view of the terms of this lease, we are not willing to say that the undenied repairs enumerated, as having been omitted, are trivial. The sinking of the floor to a distance of two inches cannot be pronounced inconsequential, to the end of avoiding the forfeiture stipulated for. Nor is there any merit in the insistence that the covenant for repair only contemplated defects going to the integrity of the building. To so interpret the lease would violate the letter and evident spirit and purpose of the instrument. Doubtless, under such a lease, it is possible a defect might appear that would be close upon the border line of triviality, and hence too inconsequential to justify a court of equity in refusing-relief against a forfeiture. But such a condition is not here presented. The want of repair in some of the particulars pertained to serious defects wrought by time or use, or both. There is an allegation that complainant was lured into inattention to these repairs by the “uniform conduct and treatment of his former and present landlord.” This averment is obviously short of an allegation of a waiver of the breaches on which the forfeiture was based. Besides, the instrument requires a waiver to be “expressly agreed” upon, and concludes against a waiver by mere inaction or by the extension of time for performance of the covenants. There is no equity in the bill. The decree must be affirmed. Affirmed. Dowdell, C. J., and Simpson and Mayfield, J.J., concur.