Bullock-McCall-McDonnell Electric Co. v. Coleman

• Decision Date: 28 February 1903
• Citation: 136 Ala. 610,33 So. 884
• Parties: BULLOCK-MCCALL-MCDONNELL ELECTRIC CO. v. COLEMAN.
• Court: Alabama Supreme Court

33 So. 884

136 Ala. 610

BULLOCK-MCCALL-MCDONNELL ELECTRIC CO. v. COLEMAN.

Supreme Court of Alabama

February 28, 1903

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action for rent by Daniel Coleman against the Bullock-McCall-McDonnell Electric Company, in which defendant sought to recoup damages caused by the bursting of water pipes on the premises. It also pleaded a failure of consideration owing to the bursting of the pipes. From a judgment for plaintiff, defendant appeals. Affirmed.

The defendant excepted to the court's refusal to give the following written charge requested by it: "(a) The construction put upon a contract by the parties to it will be adopted by the courts, and if in this case the plaintiff repaired the broken pipes at his own expense then the jury may look to this fact in connection with all the evidence to ascertain whether or not it was the duty of the plaintiff to make said repairs."

F. S Ferguson and H. C. Bullock, for appellant.

John H Miller, for appellee.

HARALSON J.

The defendant seeks a reversal of the judgment against him for an alleged error in sustaining the demurrer to his second plea.

The rule is well settled, that a lessee when sued for rent, has the right of recoupment for damages arising from the lessor's covenant to repair. Abrams v. Watson, 59 Ala. 525; Hill v. Bishop, 2 Ala. 320; Greene v. Linton, 7 Port. 133, 31 Am. Dec. 707.

It is also well understood, that at common law, no duty devolved upon the landlord to make any repairs on the premises unless there was an agreement to make them, and the tenant took them at his own risk as to fitness for occupancy or use in the condition they were in at the time of the lease. Burks v Bragg, 89 Ala. 204, 7 So. 156; 18 Am. & Eng. Ency. Law (2d Ed.) 215.

The complaint claimed of defendant $75 for rent of certain premises, payable on the 15th May, 1902. The defendant pleaded the general issue, and the special plea marked 2, in which, admitting the lease, he set up, that before and at the time of making said contract, the water supply pipes in and under the rented storehouse were in a worn-out and unfit condition, which fact was well known to the plaintiff and wholly unknown to the defendant, and could not have been discovered by him by any reasonable diligence on his part and by reason of the unfit and weak condition of said pipes they burst and discharged large quantities of water, depriving defendant of the use of his water supply for different purposes and the use of water in the conduct of his business, during the months of January, February, March and April, 1902, causing him specified damage to the amount of $52.75, which damages he offered to recoup against plaintiff's claim for rent. The plea further set up, that as soon as the breaking of said pipes was discovered, defendant notified plaintiff thereof, and demanded that he repair the same, which he refused and failed to do, for a long space of time, to wit, during the months of December, 1901, January, February, March and April, 1902, to the damage of defendant as stated.

The plaintiff demurred to this plea, because defendant's demand sounded in damages merely, were remote, speculative and not the proximate consequence of any conduct on the part of plaintiff, and were not such as could be pleaded against plaintiff's demand. The demurrer was sustained.

Thereupon, the defendant pleaded another plea, numbered 4, setting up failure of consideration, upon substantially the same grounds as were set up in the second plea, to which plaintiff demurred, and the demurrer was overruled.

The plaintiff filed replications: (1) "That by written contract under seal made between plaintiff and defendant on the 17th August, 1901, it was agreed that plaintiff should not be required to do any repairs upon the building leased unless it was so stipulated and agreed upon in writing at the commencement of said lease, and plaintiff says he did not so stipulate in writing, at the commencement of said lease, and plaintiff says, that it was further agreed between the parties to this suit in said lease,...