Van Wormer v. Crane
| Decision Date | 03 October 1883 |
| Citation | 51 Mich. 363,16 N.W. 686 |
| Court | Michigan Supreme Court |
| Parties | VAN WORMER v. CRANE and others. |
"Damages by the elements," which are ordinarily excepted from a lessee's covenant to keep in repair, cover destruction by fire occurring without fault or negligence in the lessee.
Error to Muskegon.
McLaughlin, Delano & Bunker, for plaintiff.
Keating & Dickerman, for defendant and appellant.
Action of covenant broken. The covenant was contained in a lease of land upon which was a planing-mill and box factory, and by it the lessees understood "that they will, at their own expense, during the continuance of the lease, keep the said premises, and every part thereof, in as good repair, and at the expiration of the term yield and deliver up the same in like condition as when taken, reasonable use and wear thereof and damages by the elements excepted." The breach assigned was that the planing-mill, etc., was "wholly destroyed or consumed by fire, which said fire was not caused by the elements," and that defendants neglect and refuse to rebuild.
On the trial, when the lease was offered in evidence, the defendants objected that the destruction of the buildings by fire, and the failure to rebuild, constituted no breach of the covenant set out; and the circuit judge so ruled. This ruling necessitated a judgment for the defendants, which the plaintiff brings to this court by writ of error.
The plaintiff relies upon a line of cases in which it has been held that if one covenants unconditionally to repair, or to surrender the premises in good repair, he is liable for the destruction of buildings not rebuilt by him, though it may have occurred by fire or other accident. Paradine v Jane, Aleyn, 27; Chesterfield v. Bolton, Comyn, 627; Walton v. Waterhouse, 2 Saund. 422a, note; Bullock v. Dommitt, 6 Term R. 650; Phillips v Stevens, 16 Mass. 238; Tilden v. Tilden, 13 Gray, 103; Beach v. Crain, 2 N.Y. 86; Ross v. Overton, 3 Call, 309; S.C. 2 Amer.Dec. 552; Ely v. Ely, 80 Ill. 532; Hoy v. Holt, 91 Pa.St. 88; S.C. 35 Amer.Rep. 659. But this is not a case of a covenant unconditionally to repair, for the lessees have taken care to make an exception, which was probably supposed to be important; and the question now is whether the injury which has occurred is an injury within the intent of the exception. "Damages by the elements" must be conceded to be a somewhat uncertain expression. Strictly speaking, the elements are the ultimate, undecomposable parts which unite to form anything; as the gases which form air and water are the elements respectively of those substances. But the term is used in many other senses, and the definitions of lexicographers would be of little service to us in this case.
Anciently it was supposed there were four elements of material things--earth, air, fire, and water; and when it came to be known that this classification had no scientific basis, the term had found a place in common speech which it still retains. Injuries to buildings by wind, rain, frosts, and heat are spoken of as injuries by the elements, and all the ordinary decay from natural causes is classed in the same category. Probably no one would make any question respecting this.
The injury in this case was caused by fire. No fault in connection with it is charged upon the defendants, and it seems to be taken for granted on both sides that the fire was accidental. We may, therefore, assume that the fire was one which occurred without traceable fault, and that is to be classed as a calamity for which no one is responsible, except as he may have expressly undertaken to be so. If a flood had destroyed this building the defendants would not be held responsible, because it would have been said the damage is of a sort that must be referred to the elements within the understanding of the parties in entering into this covenant. If a tornado had destroyed it, the same would have been said. We cannot suppose the parties intended to except natural and ordinary decay from wind and rain, and not the more sudden and grievous calamities proceeding from the same sources. The general expression "damages by the elements" will cover all such injuries, if it will cover any of them. But an injury by fire is as much an injury by the elements as an injury by wind or flood, and we should be at a loss for any ground on which to distinguish it under this covenant.
We have no doubt the parties intended by this exception to include all damages resulting from fire, as much as those attributable to air or water, unless traceable to the agency of man. The purpose was to excuse the lessees in cases where the damages from the causes mentioned had happened without their fault, and a popular phrase was made use of to express this intent, instead of specifying the particular injuries which were in mind. In the popular acceptation of the phrase, injuries by the elements are such injuries as result from the operation of the most common destructive forces of nature, against which buildings used to be protected; and of these fire is the chief. This being our conclusion, the judgment must be held correct, and it will be affirmed, with costs.
(The other justices concurred.)
In this case the plaintiff relies entirely upon the construction of the covenant to repair contained in the lease for recovery. The covenant is as follows: "That parties of the second part will, at their own expense, during the continuance of this lease, keep the said premises, and every part thereof, in as good repair, and at the expiration of the term yield and deliver up the same in like condition as when taken, reasonable use and wear thereof and damages by the elements excepted."
If the plaintiff's declaration states a cause of action, it is difficult to see why the testimony received against the objection of defendants' counsel was not relevant and material. The question whether the declaration is sufficient or not, should have been raised by demurrer; but as the case is presented we must consider it on the exceptions taken. This practice, however, as has been frequently observed, is not to be commended, and should be abandoned. Counsel have endeavored to apply to the case the distinction made by the authorities between the liability of an assignee and the sub-lessee of a term, in order to determine who is entitled to the damages claimed, if any are recovered in the case, thereby insisting that Van Wormer is not the proper party plaintiff. We do not deem it necessary to discuss that subject. It is sufficient to say upon this point that the testimony offered shows that defendants, if liable at all to the plaintiff, are so liable as his lessees.
The only question, therefore, is, what is the defendants' liability under the covenant to repair, above recited, contained in the lease; what was the scope of the obligation assumed? Did it extend to buildings accidentally destroyed by fire, without fault or neglect of the tenants? And in such case did it require them to rebuild? Under the civil law, the landlord was bound to repair or rebuild in case of injury or of destruction of buildings by unavoidable calamity, as tempests, fire, or enemies, (4 Kent, Comm. 110,) and the tenant was not liable.
Independent of any contract or express agreement, at common law a tenant for years must treat the premises in such a manner that no substantial injury shall be done them through any negligent or willful misconduct on his part, and must make fair and tenantable repairs; such as putting fences and buildings in order, by putting up, relaying the one when necessary, and replacing doors or windows broken in the other during his occupation or term; but he is never bound to rebuild the premises which have become ruinous or accidentally destroyed by fire; neither is he liable for mere wear and tear of the premises, nor bound to replace any portion thereof worn out by time. 4 Kent, Comm. 110, noted; Auworth v. Johnson, 5 Car. & P. 239; 3 Bl.Comm. 228; 2 Cooley's Bl. 515; Leach v. Thomas, 7 Car. & P. 327; Cheetham v. Hampson, 4 Term R. 318; Thompson v. Amey, 12 Adol. & El. 476; Tay. 9 Landl. & T. 234; Wood, Landl. & T. 582.
The bare relation of landlord and tenant is a sufficient consideration for an implied promise to treat the premises occupied by him in a good and proper manner, according to the custom of the country or place in which they are located, and to make the ordinary repairs thereto, not new or permanent, of course, but such as will keep them from going to decay and dilapidation, and which reasonable care will dictate. Tayl. Landl. & Ten. 235; Brown v. Crump, 1 Marsh. 567; 6 Taunt. 300; Powley v. Walker, 5 Term R. 373.
And the general covenant to repair extends no further. Mantz v Goring, 4 Bing.N.C. 451; Tayl. Landl. & T. 247; Wood, Landl. & T. 591; Gutteridge v. Munyard,...
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