Armstrong v. Maybee

• Decision Date: 19 April 1897
• Citation: 48 P. 737,17 Wash. 24
• Court: Washington Supreme Court
• Parties: ARMSTRONG v. MAYBEE ET AL.

48 P. 737

17 Wash. 24

ARMSTRONG v. MAYBEE ET AL.

Supreme Court of Washington

April 19, 1897

Appeal from superior court, King county; R. Osborn, Judge.

Action by I. P. Armstrong against Leander Maybee and others. Judgment for plaintiff, and defendants appeal. Affirmed.

R. Winsor and Geo. E. Morris, for appellants.

Hart &amp Hart and Wm. Parmerlee, for respondent.

REAVIS J.

Respondent brought action for breach of covenant in a lease of a shingle mill and machinery. Respondent leased to appellants a shingle mill, mill grounds, mill machinery, dry house, office, and office fixtures for a term beginning the 13th of October 1894, and ending the 1st day of January, 1896, unless the lease should be terminated by a sale of the property by the lessor. After stipulations for the payment of rent, the following covenants were stated: "The lessee shall maintain all of the machinery and buildings of said mill in as good condition and repair as the same now are in, and return the same to the lessor at the expiration of said lease in as good condition as the same are now in, reasonable wear and tear excepted. *** That he [lessee] will maintain all the said mill, machinery, and buildings in as good condition and repair as the same are now in, and return the same to lessor at the expiration or termination of this lease in as good condition as the same are now in, reasonable wear and tear from ordinary use alone excepted." There was a further stipulation that the lessee should, during the continuance of the term, maintain and keep employed and on duty at and about the mill a day watchman and a night watchman, whether the mill was operated or not. In March 1895, the mill was entirely destroyed by fire. Respondent alleged in his complaint that this fire was because of appellants' negligence. This was denied in the answer but no question is raised here upon this point. The court instructed the jury as follows: "The court instructs you that the lease introduced in evidence and set out in the plaintiff's complaint between these parties imposes an obligation upon the defendant to rebuild the buildings and the mill in case it should be burned during the tenancy. In other words, he was under the obligation to return that mill to him in as good condition as it was at the time he received it, reasonable wear and tear excepted." Appellants contend that the instruction was wrong, and counsel have with much industry and learning cited many authorities in support of appellants' claim that the language written in the lease does not constitute a covenant to rebuild in case of fire by accident, and without fault of the lessee. Without reviewing in full the cases presented in the respective briefs of counsel here, but stating our conclusion from an examination of them, we are of opinion that, without an express covenant to rebuild, the lessee is under no obligation to do so. We understand this to have been the settled law since the time of Edward IV., first in England and followed in this country. But either lessor or lessee may make any agreement which is lawful relative to repairs during the term, or to rebuild in the event of the destruction of the buildings; and, when such covenant is made, it must be enforced. In the lease under consideration the terms used constitute an express covenant to repair. Tayl. Landl. & Ten. (8th Ed.) § 364, states the rule which is approved by the great weight of authority: "Under an express covenant to repair the lessee's liability is not confined to cases of ordinary and gradual decay, but extends to injuries done to the property by fire, although accidental; and, even if the premises are entirely consumed, he is still bound to repair within a reasonable time. And the principle applies to all damages occasioned by a public enemy, or by a mob, flood, or tempest. Thus, where the covenant is to repair in general terms, or to repair, uphold, and support, or however otherwise phrased, if it undertakes the duty of repair, it binds the lessee to rebuild if the premises are destroyed. ...