Dolph v. Barry
| Decision Date | 04 June 1912 |
| Citation | 148 S.W. 196,165 Mo. App. 659 |
| Parties | DOLPH v. BARRY. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.
Action by Clifford M. Dolph against Margaret Barry. From judgment for defendant, plaintiff appeals. Reversed and remanded.
Frank K. Ryan, of St. Louis, for appellant. R. F. Walker, of St. Louis, for respondent.
This is a suit for rent. Defense is made to the rent charge on the ground of a constructive eviction, which operated a breach, on the part of plaintiff, of the covenant for quiet enjoyment implied in the lease, and, furthermore, defendant interposed a counterclaim for damages accrued through plaintiff's breach of an express covenant in the lease for repairs. The finding and judgment were for defendant and against plaintiff on the cause of action for rent declared upon in the petition and defendant's counterclaim set forth in the answer. From this judgment plaintiff prosecutes the appeal.
Plaintiff owns a three-story brick building, numbered 615 Locust street, St. Louis. By an indenture of lease he let the entire premises to defendant for a term of three years, commencing on the 15th day of March, 1908, and ending on the 15th day of March, 1911, at an annual rental of $6,500, payable by defendant lessee in monthly installments of $541.65 in advance. The lease stipulates that the first story of the demised premises should be used and occupied by the lessee as a business house for the sale of ladies' apparel. It seems that the second and third stories of the building are suitable for office and residence purposes, and the lease authorized the lessee to sublet either one or both of such stories to another. The first story of the building is about 125 feet in depth, but the second and third stories are not so deep; that is to say, a considerable portion of the first story of the building extends in the rear beyond the second and third stories. By an express covenant in the lease, plaintiff lessor agreed to repair the roof and downspouts on the building and maintain the same in good condition at all times during the term. Defendant, the lessee, installed a stock of ladies' corsets and underwear in the first story of the building, and conducted a retail store therein for the sale of such goods. The second and third stories she sublet, by a lease in writing, for a term beginning and ending on even dates with that stipulated in her lease, to Dr. Johnson, a dentist, for occupancy as dental offices and his residence. The evidence tends to prove that both the roof and downspouts on the rear portion of the first story of the building became defective, and plaintiff, the lessor, refused to repair them, though he was frequently requested so to do. Because of this condition of the roof and downspouts therefrom, on each recurring rain, large quantities of water percolated through the roof into the store beneath, and damaged defendant's goods. Defendant made repeated requests of plaintiff and his agent to repair the roof and downspouts, in accordance with his covenant in the lease to that effect, but he omitted and refused to do so. After having suffered damage to her stock of goods because of the defective condition of the roof and downspouts, defendant treated the matter as a constructive eviction from the premises, notified plaintiff lessor to that effect, and abandoned the first story of the building occupied by her as a store. Upon removing from the premises, defendant delivered the keys thereof at plaintiff lessor's agent's office, and such agent wrote her a letter that they held the keys thereafter subject to her order. Prior to removing from the storeroom, defendant served a written notice upon her subtenant, Dr. Johnson, to the effect that she had been evicted from the premises and abandoned the same, and requested him to vacate the second and third stories thereof as well. The subtenant remained in possession, however, throughout his term, but he says he did so at the request of plaintiff, the lessor. However, it appears that both defendant lessee and plaintiff lessor declined to accept the rent from the subtenant after defendant vacated the storeroom and abandoned the same.
The case concedes that defendant declined to pay rent after abandoning the premises, but she paid all installments due up to the day of such abandonment. On this appearing conclusively, it is argued the verdict should have been for plaintiff, and that the court erred in submitting the matter of an eviction to the jury, for, it is said, a mere breach on the part of a lessor of a covenant in the lease for repairs is not sufficient to operate an eviction, but, instead, remits the lessee to his suit on the covenant for the breach. Generally speaking, the proposition may be conceded to be true, but it is wholly without influence here, for the eviction asserted relates to the breach of the covenant implied in the lease for quiet enjoyment and reckons with the covenant of the lessor to repair as an incident only. No one can doubt that the consideration of the lessee's undertaking to pay rent is the quiet, peaceable, and undisputed possession of the premises leased, and for this the lease implies a covenant on the part of the lessor which is in its nature a condition precedent to the payment of the rent reserved. Therefore, if the lessor, by any wrongful act, disturbs that possession, which he should protect and defend, he thereby forfeits his right, and the lessee may abandon the possession of the premises leased, and thereby exonerate himself from liability to pay rent. Such is the doctrine of Jackson v. Eddy, 12 Mo. 209, which is frequently reaffirmed. An eviction may be either actual or constructive.
An actual eviction exists when the lessor wrongfully enters upon the premises demised and by affirmative acts deprives the lessee of the beneficial use thereof either in whole or in part.
A constructive eviction may be found, even though no actual entry upon the premises is made by the lessor, when it appears that he, or one acting under his authority, does some act amounting to intentional, injurious interference by the landlord with the tenant's possession, and which deprives the tenant of the means or the power of beneficial enjoyment of the demised premises, or any part thereof, or materially impairs such beneficial enjoyment. A mere trespass on the part of the landlord will not suffice, but, to constitute an eviction by construction of law, the wrongful conduct of the landlord must be sufficient, through affirmative act or omission of duty, to render the premises untenantable for the purpose for which the tenant leased them, or at least seriously interfere with their permanent use. See Delmar Investment Co. v. Blumenfield, 118 Mo. App. 308, 94 S. W. 823; Vromania Apartments Co. v. Goodman, 145 Mo. App. 653, 123 S. W. 543; 11 Am. & Eng. Ency. Law (2d Ed.) 471; McAdam (4th Ed.) 1381.
The common law imposes no duty upon the landlord to make repairs during the term of the lease, but, if by a stipulation in the lease the lessor agrees to do so, of course, the obligation is cast upon him. It may be that the premises demised become untenantable because of the want of such repairs as the landlord...
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