2310 Madison Ave., Inc. v. Allied Bedding Mfg. Co.

• Decision Date: 16 March 1956
• Docket Number: No. 118,118
• Citation: 209 Md. 399,121 A.2d 203
• Parties: 2310 MADISON AVENUE, Inc. v. ALLIED BEDDING MANUFACTURING CO., Inc.
• Court: Maryland Court of Appeals

Page 399

209 Md. 399

121 A.2d 203

2310 MADISON AVENUE, Inc. v.ALLIED BEDDING MANUFACTURING CO., Inc.

No. 118.

Court of Appeals of Maryland.

March 16, 1956.

Argued by Donald N. Rothman, Baltimore (Gordon, Feinblatt & Rothman, Baltimore, on the brief), for appellant.

Argued by John J. Ghingher, Jr., Baltimore (Weinberg & Green, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

Twice within a month water leaked from an upper floor, leased to one tenant, upon merchandise on the first floor belonging to another tenant with whom the landlord had covenanted in writing to keep the roof and downspouting of the building in good order and repair.A jury found the owner of the two story building liable for the damage caused to the merchandise on each occasion and exonerated a former tenant of the second floor, brought into the case by the landlord on the theory that it had clogged drains and so brought about the conditions that caused the leaks.The landlord appealed both of the judgments--that against it and that in favor of the former tenant, and then dismissed the latter appeal.We are asked to reverse the judgment against the landlord on the grounds that the trial court wrongly refused to direct a verdict on the claim set forth in each of the three counts of the declaration, and for errors claimed to have been made in the charge to the jury.

There was testimony from which the jury could have found the following to have been the facts.In 1946 the landlord, 2310 Madison Avenue, Inc., purchased the building at that address in Baltimore, which had been built for, and originally used as, a garage.By lease dated August 30, 1951, it let to Allied Bedding Manufacturing Co., Inc. the ground floor of that building.The second floor had been let to the Maryland School of Building Trades, Inc. in 1949, but in the middle of September 1951, the school vacated and the second story was then let to Bankert Hudson Company as a storeroom for automobiles.On November 7, 1951, after a rainstorm, water leaked through the second floor to the first floor, damaging goods of Allied stored there.A plumber was sent by the landlord to find the source of the trouble; he inspected the downspouting, found that no water had leaked through the joints or backed up over the roof, and thereupon advised small repairs to the roof which were made immediately.About three weeks later, after another rainstorm, water again came from overhead to the first floor and caused more extensive damage to Allied's goods.The same plumber again was sent by the landlord to investigate the trouble.This time he discovered that there was a drain in the floor of the upper story that had been covered with concrete.Sand was found in the pea trap underneath the drain.This led to an investigation of a horizontal pipe under the first floor that was common to the vertical pipe from the second floor drain and to downspouts or rain leaders from the roof.This pipe was found to be tightly packed with sand.It then became known that relatively small amounts of water could seep through the sand, but when the downspouts or rain leaders discharged too much water, it could not pass through fast enough and pressure developed that caused the water to back up the vertical pipe to the drain in the second floor.There the pressure forced up the concrete cover over the drain enough to allow the water to come out onto the second floor.Then the concrete cover would settle down again, like a check valve, and prevent the water from flowing back down the drain.The first floor was torn up and some of the drain pipe opened.Special electrically operated pipe cleaning equipment had to be brought in to clear the sand from the clogged pipes.The Maryland School for Building Trades, Inc., which taught bricklaying, had used sand in its work and there was testimony that it flushed this sand down the drain as a regular practice, although this was denied.The school itself had cleaned sand from the drain on the second floor on one or more occasions and, during its tenancy, water had once or twice backed up in the same manner as it did on the occasions here involved.As a result, the school covered the drain with concrete in 1949 and no one had noticed water on the floor in the vicinity of the drain since that time, until the occasions here in question.There was testimony from an employee of Bankert Hudson, that in the fall of 1951, there was water on the second floor deep enough to require one to wear rubbers or galoshes on a number of occasions when he visited there.This is flatly denied by another employee of Bankert Hudson, who went there as frequently or more frequently as the first witness during the same period of time.No one testified that the presence of water near the drain was ever reported to the landlord, nor was it shown that it ever knew of it before the first leak in November 1951.The president of Allied visited the property several times a week after the tenancy began and never saw water or evidence of water before the first leak.When it happened, he called American Realty Company, managing agents of the property, and spoke to Mr. Samuel Kalis, one of its officers (and also a stockholder of the landlord), and told him that the roof was leaking.Mr. Kalis conveyed this message to Mr. Isadore Abrams, an officer and a stockholder of the landlord, who went to the premises to check the trouble.When he arrived, he found a pool of water on the second floor of the building and, with a rapidly recruited laboring force, bailed it out.Mr. Abrams called a plumber, a Mr. Snyder, who found no water when he arrived although Mr. Abrams told him where it had been and how much had been there.Mr. Snyder inspected the water pipes, the downspouting and the rain leaders and discovered no defects.He recommended that the roof be thoroughly checked.This was done and the roof man recoated a small valley.Mr. Snyder testified that on the first visit there were no special circumstances to cause him to suspect that the water came from below to the second floor, since the leak had been reported as from the roof, and since water usually comes from the top down, and that therefore he had not gone down to the first floor on his first visit.Some three weeks after the first trouble, Allied's president again notified American Realty Company that water was coming through the ceiling.This was on Saturday afternoon, and on Monday morning the roofer and the plumber were again on the job.Mr. Snyder says that on this occasion he saw the pool of water on the second floor but at first could see no evidence of how it could have originated.It was where he had been told it was on the first occasion.Then he noticed a low spot in the middle of the floor in which there was a slight movement.He asked to be taken to the floor below and there saw a four inch cast iron soil pipe, with a pea trap, going up to the ceiling.This drain line from the pea trap ran across the ceiling to a wall, down the wall and underground.He then returned to the second floor and chipped away the concrete cover to find the drain and the clogged pea trap.Mr. Snyder says that when he saw the pea trap and drain line coming down to an underground clear water drain, he immediately jumped to the conclusion, which he subsequently found correct, that the drain pipe from the second floor and the rain leaders from the roof 'were tied together in a common drain.'He said that the only way to have found that the drains were clogged was by taking them up, as he did.He described downspouting and rain leaders as the same thing except that downspouts are usually outside a building and made of one metal, and rain leaders are inside the building and made of another metal.He said that drain lines run horizontally to the sewers and are the pipes into which the downspouts and rain leaders empty.The plumbing code distinguishes between them and downspouts and rain leaders.On one occasion Mr. Kalis saw the school hosing down the second floor.The drain was uncovered in 1946 when the building was bought.All of the drainage system of the building was inside.There had been no complaints of any water, nor had the landlord known of any water trouble whatever, except once, a year and a half or two years before November, 1951, when rain came through a wall quite far removed from the drain.

The declaration was in three counts: the first, for breach of the covenant of the lease to keep the roof and downspouting 'in good order and repair'; the second, for negligence in failing to prevent or correct a defective and clogged condition of the downspouting and rain leaders; and the third, for that the landlord, aware of the purpose for which Allied intended to use the premises, that is, for the storage of bedding, leased the premises knowing that the downspouting and rain leaders then were in a defective and clogged condition and knowing that Allied was unaware of that condition, without informing them as to it.

The appellant urges that a verdict should have been directed on the first count because a covenant to repair is never implied, and where there is a covenant to repair, there must be actual notice of the particular repairs needed, coupled with failure to make such repairs within a reasonable time after that notice, before the landlord becomes liable.It says that the damage on neither occasion was due to any defect in 'the roof and downspouting', which were the only things it had covenanted to keep 'in good order and repair'.It goes further to say that even if the covenant to repair the downspouting 'is stretched to include the drain system', there is uncontradicted evidence that no notice was given it that the drain system was out of order and in need of repair.

In support of the motion for a directed verdict on count two of the declaration, appellant makes two...