Norris v. McFadden

McAlvay, J. Plaintiff, as trustee representing the — 426 — owners of a building called the “Auditorium” in Grand Rapids, on September 6, 1904, rented the same (notincluding the basement and part of one gallery) to defendant by a lease in writing signed by the parties, for the term of one year after October 1, 1904, with the privilege of renewals from year to year for the further period of four years from its termination, by giving notice of such renewal on or before May 1st of each year. Thirteen dates were reserved by plaintiff under contracts made by him before this leasing. The property leased was to be occupied by defendant “for a roller skating rink, theater, and concert hall.” The annual rental, $4,800, was to be paid in six equal installments at times and a place stated in the lease. The lease contained the ordinary agreement by the lessee to repair, reasonable use and wear and damage by the elements excepted. Defendant went into possession of the premises, and for a time conducted a skating rink. In April, 1905, defendant gave notice of a renewal for another year, and entered into a written agreement with plaintiff on August 23, 1905, relative to contemplated changes, alterations, and scenery in said Auditorium according to plans and specifications to be approved by plaintiff. These changes consisted in certain scenery, dressing rooms, and a fly gallery, and were to comply with the statutes of Michigan and the ordinances of Grand Rapids. Twelve hundred dollars of the expense of these changes and scenery was to be allowed defendant out of rent, but to be repaid in case the lease was not renewed for the year 1906-1907. Defendant expended $2,700, including this $1,200. The Auditorium had been used for concerts and political meetings before defendant rented it, but was not fitted up for theatrical performances. The first performance was on November 27, 1905. Plaintiff was required to promise the city building inspector certain changes before a performance was permitted. Firemen were placed by the fire marshal on the premises in the presence of the people, on account of — 427 — which no performance was had, and the money was refunded to those who attended. No performance was allowed, except on special occasions, because the building was not fixed as ordered, and men in uniform on each occasion were stationed through the audience. But five performances were given. Agents would not book performances on account of the condition of the house. Defendant went out of the place in June, 1906. His claim is that he had no knowledge that the authorities had required certain things to be done by the plaintiff, for the public safety, until after he had renewed his lease and made the changes contemplated by the second agreement, and that plaintiff, having knowledge of these facts, and having agreed to comply with the demands of the authorities, leased defendant a building unsuitable for the purposes required. In January, 1904, shortly after the Iroquois theater disaster in Chicago, a committee, which had been appointed by the common council of Grand Rapids, consisting of the ordinance committee, the board of police and fire commissioners, fire marshal and building inspector, “to examine the several opera houses, theaters and places of amusement in the city, to ascertain if such places are so constructed and operated as to comply with the requirements of the city ordinances, and what, if any, changes should be made to render them entirely safe .to the public,” reported to the council, together with a recommendation for its adoption, and that a certified copy of the report be delivered to the owners of the properties affected, and that each of them be required within 60 days after such notice to make the changes recommended. As to the Auditorium, the changes required were “ to put in a wide stairway at the northeast corner of the building from the sidewalk to the balcony and main floor, and stairs leading from the same to the ground; that call boxes be placed in the building and at least two lines of hose be placed on the main floor, two in the balcony and two on the stage, to cover all exposed woodwork in the basement with ex428 pandad metal lathing and two coats of hard plaster; also a cement floor and automatic spinkler system in the entire basement. We recommend that there should be watchmen that would be acceptable to the fire marshal employed to patrol the basement during each and every occasion that the hall shall be used, until above mentioned requirements are completed.” The report was adopted, and plaintiff duly received a certified copy. The basement under the stage was occupied by tenants of plaintiff, where furniture was packed, and a furniture repair shop was conducted. Plaintiff had conferences with the city authorities after this, and put in a new exit in front in place of the iron stairway, and put in a double floor lined with asbestos, replastered the basement with metal lath, also put in iron columns in place of wooden ones. The automatic sprinkler was not put in, nor the lines of hose on the stage and balcony. This was the condition when he rented to defendant. Afterwards, in February, 1906, the council again considered this matter, and a special committee made report as to what defendant had done and omitted to do, relative to the changes required by action taken in January, 1904. This report shows the condition in the basement under the Auditorium as to liability of fire from the inflammable nature of the material crowded into it, and the use of a gas stove within a few inches of an unprotected wooden partition. This committee recommended other and further changes to be made by plaintiff, and expressed the opinion that the condition at this place was hazardous; that the proprietors be required to make the changes required in 30 days and that a patrol of five experienced firemen, by arrangement with them, be detailed to be present during all times when audiences were convened, and in default of compliance the Auditorium be closed forthwith. Plaintiff was present and addressed the council upon the matter. After some modification as to cement floor, and the time for building a wall, the report was adopted. The matter, as far as the evidence or proof offered shows, re — 429 — mained in statu quo until June 11, 1906, when plaintiff sent a letter to the council, wherein he states that he is advised that the matter of the changes ordered in this building will come up for discussion, and proceeds to give his reasons why he has delayed in the matter, stating that the contracts have been let, but it had been impossible for contractors to get materials, etc., and closes by saying: “ The delay in complying with the requirement of the council has not been caused by any desire on the part of the owners to delay or fail to observe reasonable requirements, but simply on account of weather conditions and inability to get the material required for the work.” Under these conditions, the changes required by the council not having been completed, the defendant, who had gone on making the changes referred to in the agreement of August 23, 1905, relying, as he testifies, upon the promises of plaintiff made to him to complete the required changes ordered by the city authorities, went out of the building and turned the keys over to plaintiff June 19, 1906. Upon the trial defendant offered in evidence the records of the common council of Grand Rapids to show the official action herein briefly outlined. These were objected to as hearsay and excluded. Plaintiff and defendant were the only witnesses in the case. At the close of the case plaintiff moved for an instructed verdict, which was granted by the court on the grounds: (1) That there was no liability of the landlord for failing to show defects open to observation or reasonable investigation. (2) That the records of the common council were not substantive proof of the facts contained in the reports, but was hearsay. (3) That defendant was as responsible as the landlord for failure to comply with the municipal requirements by reason of the contract of August 23, 1905. (4) That the firemen placed in the building were trespassers. A verdict was directed for the full amount of $3,348.47. — 430 — Errors are assigned upon this action of the court. The case is here upon a writ of error sued out by defendant to review this action of the court. He claims that none of the reasons of the court were sound, as a matter of law. 1. Defendant had no knowledge of the action of the authorities in ordering the plaintiff to comply with orders to make the building safe for the public, and plaintiff withheld such knowledge from defendant. No examination of the premises leased by defendant would have disclosed the requirements of the common council relative to the safety of the building. 2. The records offered in evidence were the official records of the council kept as required by law. The matter was within the province and authority of the council to consider and act upon, and the record contained the action taken by the council. The reports embodied in this record were the reports of city officials made in the line of duty and reported to the legislative body. We think the record presented was admissible as evidence under the statute of the official action of the council in regard to the regulation of the building in the interests of the public safety. Jones on Evidence, § 520; 1 Greenleaf on Evidence, § 488; Thurstin v. Luce, 61 Mich. 292 (28 N. W. 103); People v. Kemp, 76 Mich. 410 (43 N. W. 439); 3 Comp. Laws, § 10193. It was error to exclude these records. 3. The court held that, on account of the agreement of August 23, 1905, defendant was equally responsible with his landlord for failure to comply with the requirements of the council. This agreement had no reference to the things ordered done by the council. It was entered into nearly two years after the first action of the council, and the clause relied upon by plaintiff and construed by the court reads: “ Said McFadden shall cause all such changes and alterations to be made of first-class materials and workmanship in accordance with the plans and specifications to be prepared as above specified and in strict accordance with — 431 — the laws of the State of Michigan and the ordinances of the city of Grand Rapids. ” These changes consisted of scenery, dressing rooms, and a fly gallery, and were put in by permission of the proper authorities, and plaintiff, when in making these changes it was discovered that the proscenium arch was a wooden truss, was notified by the authorities of that fact. He put in one of metal and tile as ordered by the authorities, and did not claim that such construction was equally obligatory upon defendant. This was the practical construction of the parties at the time. The clause in the agreement of August 23d had reference to the changes to be made by defendant therein specified, and was no undertaking on his part to conform with the orders of which he. had no knowledge. The court was in error in his construction of this agreement. 4. We do not take the view that the firemen were .in the building as trespassers merely. The authorities, in the interest of the public safety, had a right to take such reasonable precautions as might be necessary. It is urged that they might close the place, but could not put men in the building to protect the public from danger in case a fire broke out. We are not prepared to say that the action of the officers in putting men in the building was unreasonable or unlawful. In any event it is no defense for plaintiff. There was some evidence in the case as to the condition of this basement other than in the reports of the officers. It is stated in the testimony of defendant, and plaintiff’s letter to the council shows, that he acquiesced in all material respects, although not with any evidence of speedy completion. The first order of the council was made January 18, 1904, and when defendant surrendered the keys June 19,1906, the requirements of this order were not completed. Defendant leased and went into possession, October 1, 1904, to occupy and use the Auditorium for “a roller skating rink, theater and concert hall.” At this time plaintiff knew, and defendant did not know, — 432 — that these premises could not be used for the purposes for which they were leased, and he did not disclose that fact. These facts seem to be undisputed. The court was in error in taking the case from the jury. Defendant pleaded recoupment for damages. He is entitled upon his theory of this case to make proof of such damages as may be proper under the pleadings and circumstances of the case, and to recover such amount as may be found, provided it is determined that he surrendered the premises because of the default of plaintiff. The judgment is reversed and set aside, and a new trial ordered. Blair, C. J., and Montgomery, Ostrander, Hooker, Moore, and Brooke, JJ., concurred with McAlvay, J.