Tyson v. Weil

ANDERSON, J. Pleas 3 and 4, by whatever name they may be designated, set up a nonliability for rent only after the fire and a clause in the lease giving a right to terminate.it in case of a failure to rebuild or repair. Idea 3 set up a failure to rebuild or repair within a reasonable time, but plea 4 did not contain this averment, yet the point was not taken by any ground of demurrer to said plea 4. The general rule is that ivhen a tenant remains in possession and enjoyment of the premises he cannot set up a failure to make repairs as a bar to the action, but must protect himself by way of set-off or recoupment. — Hill v. Bishop, 2 Ala. 320; 24 Cyc. 1159; 18 Am. & Eng. Encyc. of Law, 230. The defendant, however, in the case at bar, sets up a contract with a right to terminate same after the fire and a failure to repair, and that the same was terminated. If, therefore, he had a right to terminate and did terminate same, this fact could be shown in bar to so much of the rent as was claimed subsequent to the termination of said rental contract. So, to, if the defendant remained in possession to such an extent as to waive his right to terminate the lease, this would be a matter for replication, and it was not necessary to negative a waiver in the special plea. The lease in question, by its own terms, terminates the relationship in case of a destruction of the premises and a failure to repair within a reasonable time, and requires no affirmative action on the part [564] of the defendant to terminate same. If he continued to use and occupy the premises this might operate as a waiver, but was matter of replication by the plaintiff and the fact did not have to be negatived in the defendant’s pleas. We think the intention of the parties to be gathered from the instrument was that the words “destroyed by fire” not only contemplated a total destruction of the building, but such damage thereto as would render it unfit or incapable of being used for the purposes for which it was rented. The clause not only provides that the store should be rebuilt, but also provides for placing it in a tenantable condition. — Manchester Co. v. Feibelman, 118 Ala. 308, 23 South. 759. It may be that the clause to rebuild or repair in case of fire was not a guaranty against all fires, and was not binding on the plaintiff, if the fire was caused or originated through the negligence of. the tenant. — 18 Am. & Eng. Encyc. of Law, 228, 229, and cases cited in note 1 to page 229. The fact, however, that the fire was not caused by the neglect ot the defendant would be a negative averment, and an exception, and if it was caused through his neglect it should be affirmatively set up by way of replication. There was no error in overruling the plaintiff’s demurrers to pleas 3 and 4. For the reasons above set forth, plea 7 was not bad for failing to negative the negligence of the defendant as the cause of the fire. We also think it sufficiently avers that the store was rendered untenantable. It avers that the defendant was to occupy the building as a dry goods store and that it was so damaged, that it could not be used for the purposes for which it was rented, and that the plaintiff failed to place said storehouse in a tenantable condition. [565] Where the agreement is to keep the premises in repair, or to make all necessary repairs during the term, a notice hy the tenant to the landlord of the need of repairs is, as a general rule, necessary to place the landlord in default for not repairing. — -18 Am. & Eng. Encyc. of Law, 229; Manchester Warehouse Co. v. Carr, (Eng.) 5 C. P. D. 507; Seiber v. Blanc, 76 Cal. 173, 18 Pac. 260; Marley v. Wheelright, 172 Mass. 530, 52 N. E. 1066; Gerzebek v. Lord, 33 N. J. Law, 240; Thomas v. Kingsland, 108 N. Y. 616, 14 E. 807; Cook v. England, 27 Md. 14, 92 Am. Dec. 618. A distinction between to put in repair before the commencement of the lease and to keep in repair during the rented period is very properly made in the case of Gerzebek v. Lord, 33 N. J. Law, 240, where the court held, that the first covenant was broken by a failure to repair within a reasonable time, but as to the second covenant, notice from the tenant to the landlord was necessary. Of course, it would not be necessary for the tenant to give the landlord notice of the defect if he already knew of it, but in order to charge the landlord with a breach of the contract to keep in repair, during the lease, the pleading should charge that notice was given him or that he knew of the defect. The defendant’s plea 9 Avas defective and subject to the fourth ground of demurrer to the eighth plea which was also made applicable to plea 9. Nor are we prepared to say that this error Avas of no injury to the plaintiff as there AAras evidence in support of the plea, and we cannot say that the trial court did not consider it in arriving at the plaintiff’s damages. The evidence was by no means conclusive of a termination of the lease, and the reduction of the plaintiff’s demand may have been grounded solely on the set-off or recoupment. It is questionable if the plaintiff did not make the repairs or start to do so within a reasonable time and was [566] stopped by the defendant. It is also questionable, if the defendant did not continue to use the store to sucli an extent as to estop him from claiming that the lease had terminated. It may be that no authority was shown in Manor to accept or reject the. key to the store, when the evidence was let in, but this error was cured by the subsequent admission of the plaintiff, when a witness, that he authorized Manor to act for him in refusing to accept the key. There was no reversible error in the ruling upon the evidence. For the error above designated, the judgment of the city court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Sayre and Evans, JJ., concur.