Barbour v. Waterston

• Decision Date: 16 June 1936
• Docket Number: No. 7.,7.
• Citation: 276 Mich. 304,267 N.W. 845
• Parties: BARBOUR et al. v. WATERSTON.
• Court: Michigan Supreme Court

276 Mich. 304

267 N.W. 845

BARBOUR et al.

v.WATERSTON.

No. 7.

Supreme Court of Michigan.

June 16, 1936.

Action by William T. Barbour and others against James M. Waterston. Judgment for plaintiffs, and defendant appeals.

Reversed and remanded, with directions.

Appeal from Circuit Court, Wayne County; Christopher E. stein, judge.

Argued before the Entire Bench.

Guy W. Moore and Hal P. Wilson, both of Detroit, for appellant.

Hunt & Field, of Detroit, for appellees.

TOY, Justice.

Plaintiffs bring this action to recover rental payments from defendant, their tenant, under a written lease of a four-story brick building, located at 427 Woodward avenue, in the city of Detroit. The case was tried by the court without a jury, and at its conclusion the trial judge found for plaintiffs. From the judgment entered, defendant appeals.

The lease contained the following provision: ‘It is agreed that in case the building is injured or destroyed by fire in whole or in part during the period of this lease, the parties of the first part shall forthwith repair and restore the same to a good tenantable condition, so as to be as nearly as may be substantially the same as it was prior to the time of said fire, and that the rent herein provided for shall abate entirely in case of a total destruction, until the same shall be restored to a condition so as to be occupied by the party of the second part.’

The premises were occupied by defendant as a tool shop, hardware, and sporting goods store. On March 26, 1933, a fire occurred on said premises, which partially destroyed defendant's stock of merchandise, and which damaged the building so that it became untenantable.

The plaintiffs through their agent, the Detroit Trust Company, had notice of the fire the day following. Their representative visited the premises that day. On April 8, following the date of the fire, the Hyde Construction Company were employed by the trust company to clean up the premises. They employed six men and a truck to do the work. These men commenced work on Friday, April 14, and finished removing the rubbish and débris therefrom the following Monday, April 17th.

On April 24th defendant, through his attorneys, notified plaintiffs in writing, in part, as follows: ‘* * * the entire premises were so destroyed by fire as to render their occupancy and use impossible without repairs; which * * * you, under the terms of that lease, were to make ‘forthwith,’ and in view of the fact that no repairs at all have been either made or are in progress, we do for him (defendant), elect and declare that he therefore considers this lease void and of no further force or effect and is arranging to secure another location for the carrying on of his business.'

After the débris had been removed, the trust company, acting for plaintiffs, submitted specifications to several contractors, of repairs needed to restore the building to tenantableness. The trust company allowed the contractors between 8 and 10 days to make their bids, after which the bids were opened and the contract awarded to the firm of Talbot and Meier.

On April 25th, the day after defendant had given notice of termination of tenancy, the trust company notified Talbot and Meier to commence work immediately. On May 2, plaintiffs' attorneys notified defendant that he would be held to the lease, and would not be permitted to terminate it. Later plaintiffs notified defendant that the premises would be ready for occupancy on June 1st. The record discloses, however, that the repair job was not accepted by the trust company, acting for plaintiffs, as completed until June 27th.

The crux of this case is whether the defendant was justified in terminating his tenancy. If he was, then the judgment must be reversed; otherwise it should be affirmed.

To make decision, we must first turn to the lease. There we find a covenant imposing upon the plaintiffs the duty to ‘forthwith’ repair the damage caused by the fire. The term ‘forthwith,’ as here used, means ‘at once,’ ‘promptly,’ ‘without delay.’ The word has a relative meaning and will imply a longer or shorter period according to the nature of the thing to be done. Dickerman v. Northern Trust Co., 176 U.S. 181, 20 S.Ct. 311, 44 L.Ed. 423.

In Simmons v. National Live Stock Insurance Co., 187 Mich. 551, 153 N.W. 696, 699, Ann.Cas.1917D, 42, we said:

‘We had occasion to consider the legal meaning of the term ‘forthwith’ in the case of Walker v. City of Detroit, 138 Mich. 538, 101 N.W. 809. We there said:

“The term ‘forthwith’ does not in all cases mean ‘instanter,’ but may and often does have a relative meaning, and may mean ‘all reasonable celerity,’ or ‘all reasonable dispatch,’ ‘with reasonable and proper diligence.’ 13 Am. & Eng.Enc.Law (2d Ed.) p. 1157 et seq. And what is a reasonable time depends on the circumstances of each case. Anderson v. Goff, 72 Cal. [65] 73, 13 P. 73,1 Am.St.Rep. 34.”

It was the duty of the plaintiffs, therefore, in accordance with the covenant in the lease, to proceed with all reasonable celerity, dispatch, and diligence, to repair the damage and restore the premises. This they failed to do. They knew of the fire on March 27th. Their agent visited the premises on that day. Nothing was done, however, toward remedying the damage until April 8th, when a contracting firm was engaged to remove the débris caused by the fire. This contractor did not commence the work until April 14th. Plaintiffs contend that this delay was caused by the action of defendant in refusing to allow the contractor upon the premises. The record does not sustain this contention.

This renovating work was completed on April 17th. The contract to repair, however, was not let by plaintiffs until April 25th-the day after notice had been given by the defendant of his termination of tenancy.

Plaintiffs contend that this delay was occasioned because it was necessary to have the débris removed from the premises before it was possible to have specifications drawn for the purpose of making a repair contract.

We think this contention is answered by the testimony of plaintiffs' witness Hyde, a contractor, who testified:

‘Q. Was it possible or feasible to draw specifications on that premises until the premises had been cleaned up? A. Yes.’

Defendant made every effort to ascertain from the trust company, plaintiffs' agent, when the premises would be repaired, but received no information whatever from them, but, on the...