Carley v. Liberty Hat Mfg. Co.

• Decision Date: 06 March 1911
• Citation: 79 A. 447,81 N.J.L. 502
• Parties: CARLEY v. LIBERTY HAT MFG. CO.
• Court: New Jersey Supreme Court

79 A. 447

81 N.J.L. 502

CARLEY

v. LIBERTY HAT MFG. CO.

Court of Errors and Appeals of New Jersey.

March 6, 1911.

Syllabus by the Court.

Error to Supreme Court.

Action by Emily F. Carley against the Liberty Hat Manufacturing Company. Judgment for plaintiff (75 Atl. 543), and defendant brings error. Reversed, and new trial granted.

Lowy, Lowenstein & Leber, for plaintiff in error.

Sommer, Colby & Whiting, for defendant in error.

VOORHEES, J. This is a writ of error to the Supreme Court which on appeal affirmed a judgment of the Second district court of Newark rendered for the plaintiff for $150 and costs. The suit was brought for $150, being an installment of rent due upon a written lease, demising certain lands and premises, with the buildings thereon and appurtenances at a yearly rental of $1,800, payable in monthly installments of $150 each in advance on the first secular day of each month. An installment of rent became due for the month of May, 1909, on the 1st day of that month. It was not paid on the due date. The defendant remained in the undisturbed possession of the premises until May 8, 1909, when, without his fault, the buildings on the premises were totally destroyed by fire. Since the fire the defendant has not occupied the premises. Some time after the fire, but before suit brought, the defendant made a tender to the plaintiff of eight days' rent, which was refused. The suit was then instituted to recover the rent for the entire month of May. The defendant interposed a recoupment against the plaintiff's demand for the portion of rent from the 8th day of May to the 1st day of June. Judgment was given for $150 for the plaintiff for the whole month; the defendant's claim for the portion of the rent referable to the period after the fire being disallowed.

The solution of the question presented by the writ involves the construction of the act of March 5, 1874 (P. L. p. 27, Gen. St. 1895, p. 1923, § 35). It reads as follows: "That whenever any building or buildings erected on leased premises shall be injured by fire without the fault of the lessee, the landlord shall repair the same as speedily as possible, or in default thereof, the rent shall cease until such time as such building or buildings shall be put in complete repair; and in case of the total destruction of such building or buildings by fire or otherwise, the rent shall be paid up to the time of such destruction and then and from thenceforth, the lease shall cease and come to an end; provided always, that this section shall not extend to or apply to cases where the parties have otherwise stipulated in their agreement of lease." Of course, this statute was a remedy for the harshness of the common-law rule, which made the rent payable notwithstanding the destruction of the buildings upon the demised property. It provides for two cases: The first for injury to the buildings by fire, and makes it the duty of the landlord to repair under penalty of having the rent cease until the buildings shall be put in complete repair. This does not contemplate the termination of the lease. The other case is where there is a total destruction of the buildings. In that case the rent shall be paid up to the time of the destruction, and then the lease shall cease and come to an end. Reading these two clauses together, it cannot lie said that the statute offers an option to the tenant to be availed of by him within a reasonable time whether he will terminate the lease or not. The language expressly provides that the lease shall terminate and the word "then" in the clause "and then and from thenceforth" refers to the time of destruction. The severing of the relation between landlord and tenant may prove to be of substantial benefit to the owner by leaving him free to allow the premises to remain without buildings or to erect thereon new structures suited to the location and condition of the property. The termination is not made dependent upon the rent being paid to the time of the destruction. The statute means that there shall be a liability for the payment of the rent to the date of destruction and cessation of the term, and provides that the tenant shall pay it. This is most equitable and a just change of the former rule, and, being within the plain words of the act, should be the construction.

It has been suggested that this view would in some cases lead to injustice, and the case has been instanced where a plantation had been demised, having but a single structure upon it, the destruction of which would work a termination of the lease. The answer to that is that the parties contract with knowledge of the law, and may provide against such a contingency by agreeing upon the circumstances which shall terminate the lease. Great stress has been laid upon the fact that at common law rent is not apportionable, and therefore cannot be divided. It is strenuously argued that, when by agreement rent has been made payable in advance of the period for which it is to be earned, it is still a unit and indivisible, and, a fortiori, when paid, is not recoverable, although the term of the tenant may have come to an end before the end of the period for which it was paid. The statute in the plainest words as to rent not made payable in advance has changed the common-law rule in the cases mentioned in the statute. Rent thus payable under the given circumstances has been clearly made apportionable. The language, "paid up to the time of such destruction," means payment of the rent which is earned up to that time, and it is clear that rent not payable in advance of being earned, but at the end of the period for which it was reserved, could be recovered only for a period "up to the time of such destruction." The plaintiff concedes the soundness of this proposition.

Should a different effect be given to the statute when the fire occurs after an installment of the annual rent has become due and payable, but within the period for which it was reserved? We agree that the plaintiff is correct in insisting that the failure of the tenant to pay the rent promptly upon the 1st day of the month in advance can gain for it no advantage from the circumstances that, in fact, the rent was unpaid when the tire took place. To hold otherwise would be permitting the lessee to profit by its own wrong. The case must be considered with reference to the right of the tenant to recover from the landlord, in case the rent had been paid in advance, the unearned portion thereof; that is, all that had not been earned at the time of the fire and after eviction under the statute. In debating this question, we must keep in mind what the statute avowedly intended to do and what it has in terms directed shall be done. First, it has provided that the fire shall mark a period down to which the tenant shall be liable to pay, and cancel his liability thereafter; secondly, that, after the fire, "the lease shall cease and come to an end." It thus not only puts an end to the enjoyment of the occupation, but, in consequence, causes a failure of the consideration for which the rent had been paid in advance. Thus every obstacle to the recovery by the tenant of previously paid rent is removed. The rent is divisible and the consideration has failed. This result seems to attend the natural and ordinary meaning of the words of the enactment. It enforces payment on the part of the tenant for the value he has received in the enjoyment of his possession. It prevents the landlord from retaining that for which he has given no value.

The argument is that liberality of construction should not be accorded to the statute because it is in derogation of the common law. All statutes which change the common law are in a sense in derogation thereof; yet there is another rule which is likewise recognized prescribing for remedial statutes a liberal interpretation. The case of Coles v. Celluloid Mfg. Co., 39 N. J. Law, 326, cited as sustaining this principle does not seem to be in point. While it referred to this statute, it was to show its inapplicability to the case then under consideration because enacted after the cause of action in that case had arisen. Tinsman v. Belvidere Delaware R. Co., 26 N. J. Law, 148, 69 Am. Dec. 565, also cited, is clearly distinguishable...