Anderson v. Ferguson

• Decision Date: 20 March 1943
• Docket Number: 28920.
• Citation: 17 Wn.2d 262,135 P.2d 302
• Parties: ANDERSON v. FERGUSON et al.
• Court: Washington Supreme Court

135 P.2d 302

17 Wn.2d 262

ANDERSON v. FERGUSON et al.

No. 28920.

Supreme Court of Washington

March 20, 1943

Department 1.

Action by O. A. Anderson against M. Ferguson and others to recover the value of building destroyed by fire on premises leased by plaintiff to defendants and to recover rent for an unexpired portion of the lease. From a judgment of dismissal plaintiffs appeal.

Reversed in part with directions.

MILLARD J., dissenting in part.

Appeal from Superior Court, Clallam County; Ralph Smythe, judge.

Joseph H. Johnston, of Port Angeles, for appellant.

Wm. J Conniff and Stanley A. Taylor, both of Port Angeles, for respondents.

STEINERT Justice.

The owner and lessor of certain real estate, on which were located several buildings used for shingle mill purposes, brought suit against his lessees upon their covenants to repair and to pay rent. In his complaint he sought to recover the value of one of the buildings, which had been entirely destroyed by fire during the term of the lease, and, further, to recover the total amount of rent which would accrue under the lease during the unexpired portion of the term. The cause was tried to the court without a jury, and at the conclusion of the plaintiff's case, the court granted the defendants' motion to dismiss the action and later entered judgment of dismissal. The plaintiff lessor appealed.

The lease upon which this action is based, in so far as its provisions are material here, reads as follows:

'This Indenture, Made this 26th day of November, A.D. 1940

'Witnesseth, That O. A. Anderson, widower, * * * hereinafter called the lessor, does hereby lease, demise and let unto M. Ferguson and Thos. B. Pattison * * * hereinafter called the lessees

'The following described real property [here follows a description by metes and bounds, with references made to several existing structures]; including the drykiln building and shingle machine building in their present condition. The lessees to repair said buildings to suit their own purpose or use at their own expense.

* * *

* * *

'To Have and to Hold, for the term of Five Years to-wit: from the 26th day of November, A.D. 1940, to the 30th day of November, A.D. 1946 [sic] yielding and paying therefor the monthly rent of Ten Dollars, lawful money of the United States of America.

'The said lessee promises to pay the said rent as follows: The Dollars December 1st, 1940, and a like amount on the 1st day of each calander month to the end of the term and agrees to quit and deliver up the premises to the lessor, his agent or attorney, peaceably and quietly at the end of the term, in as good order, condition and repair as the reasonable use and wear thereof will permit. * * *'

The lease contained no exception clause relating to damage by fire or the elements.

The improvements on the premises at the time of the execution of the lease consisted of a shingle mill building large enough to accommodate four machines, a knee bolter, a swing cur-off, a log slip to the pond, a machine room, and a filing room; a leanto; and a dry kiln.

The respondents entered into possession of the leased property, moved in some machinery, built two conveyors, and thereafter operated the shingle mill and paid the rent until May 2, 1941, when a fire broke out on the premises and, through no fault of any of the parties herein, entirely destroyed the shingle machine building and the structures connected with it, but did not damage the dry kiln. Since the fire, respondents have conducted no operations on the premises and have visited them but infrequently, although some of their machinery is still located thereon, subject to an attachment levied by the sheriff. The shingle machine building and structures connected with it have never been rebuilt, and respondents have refused to pay any further rent.

Conceiving that he was entitled to recover for the destruction of the shingle machine building and for continuing rent under the lease, appellant instituted this action. He alleged in his complaint, and respondents admitted in their answer, that the property had no rental value after the fire, and that appellant could not lease the premises for any sum. According to the evidence introduced by appellant, the value of the shingle machine building immediately Before the fire was $850, and the cost of rebuilding it would amount to about $1,200.

The first question presented upon the appeal is whether or not, under the covenants contained in the lease, the respondents are required to rebuild the shingle machine building. This question requires a close analysis of the language in which the covenants of repair are set forth. Before entering upon that, however, it may be well to have Before us the rule at common law relative to general covenants to repair demised premises. The rule and its effect have been fully and explicitly stated in several well known texts and commentaries, from two of which we quote. In 3 Thompson, Real Property, Perm. Ed. 1940, p. 516, § 1345, it is said:

'It is the established rule of the common law that an express covenant to repair binds the covenantor to make good any injury which human power can remedy, even if caused by storm, flood, fire, inevitable accident, or the act of a stranger. The foundation of the rule is the doctrine that a person who has bound himself unconditionally can not be relieved, and that a covenant to repair is equivalent to a covenant to rebuild. Although a man may be excused from a duty imposed on him by law, if he is disabled from performing it without any fault of his own; yet when, by his own contract, he creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity. If it is urged that this is a hardship upon the lessee, the answer is that it was his own folly to not stipulate against such inevitable consequences. So, the covenant of a lessee or lessor to repair is not discharged by the destruction of the premises by lightning, fire or wind.'

Further, on page 523, § 1347, it is said: 'The general rule under the common law is that, in case the lessee covenants to keep the leased premises in repair and he does not qualify the same by special provision or exception, he is obligated under such covenant to rebuild even though the building is destroyed through no fault of his own. Under this rule, it is generally held that, if the lessee covenants to deliver up the demised premises at the end of the term in good condition or repair, he is not excused or discharged from liability by reason of the accidental destruction of the premises by fire or other casualty without his fault.'

Many cases supporting the text are cited in the footnotes. In the body of the section from which we have last quoted, however, the author further says that in some jurisdictions the rule has been changed by statute, and in others it has been rejected entirely. This latter statement is also supported by citations in the footnotes.

In 32 Am.Jur. 675, Landlord and Tenant, § 791, appears the following statement:

'It was the well-settled early commonlaw rule that a tenant's general covenant to repair the demised premises binds him under all circumstances, even though the injury proceeds from an act of God, from the elements, or from the act of a stranger or of a public enemy, and if he desires to relieve himself from liability for injuries resulting from any of the causes above enumerated, or from any other cause whatever, he must take care to except them from the operation of his covenant. Although in some jurisdictions the rule has been modified by statute or by the courts, there is much authority to the effect that a general covenant to keep the leased premises in repair, where not qualified by special provisions or exceptions, imposes upon the tenant the duty of rebuilding a structure upon the leased premises which accidentally falls or is in some manner destroyed, even though without the fault of the tenant. This rule has been laid down as to destruction by fire, although a contrary view has also been taken as to such destruction. If the tenant covenants to keep the premises in repair, and also covenants to insure them for a specific amount against fire, and they are burned down, it has been held that the tenant's liability on the former covenant is not limited to the amount to be insured under the latter covenant.'

These statements of the paragraph just quoted are likewise fortified by the citation of cases in the footnotes to the text. Similar statements will also be found in 3 Tiffany, Real Property, 3d Ed., pp. 567, 568, § 905; 2 Underhill, Landlord and Tenant, p. 882, et seq., § 528; 1 Taylor, Landlord and Tenant, 9th Ed., p. 454, § 364 (the language of which is cited with approval in Armstrong v. Maybee, 17 Wash. 24, 48 P. 737,

61 Am.St.Rep. 898); 1 Wood, Landlord and Tenant, 2d Ed., p. 808, § 370 (likewise cited with approval in Armstrong v. Maybee, supra); 36 C.J. 145, Landlord and Tenant, § 782. A full discussion of the subject, accompanied by an extensive list of cited cases, will be found in a lengthy annotation (1926) appearing in 45 A.L.R. 12, particularly at pages 58 to 67.

So far as we have been informed by briefs of counsel, or been able to discover from an independent search, there are but two cases in this jurisdiction which touch upon the question now under consideration: Armstrong v. Maybee, 17 Wash 24, 48 P. 737, 61 Am.St.Rep. 898, and Arnold-Evans Company v. Hardung, 132 Wash. 426, 232 P. 290, 45 A.L.R. 9. Both of these cases are cited by the authors of the texts above quoted as supporting the common-law rule therein stated. The Armstrong case presented a state of facts quite similar to those involved here, except in one vital...