Dolph v. Barry

• Decision Date: 04 June 1912
• Parties: CLIFFORD M. DOLPH, Appellant, v. MARGARET BARRY, Respondent
• Court: Missouri Court of Appeals

148 S.W. 196

165 Mo.App. 659

CLIFFORD M. DOLPH, Appellant, v. MARGARET BARRY, Respondent

Court of Appeals of Missouri, St. Louis

June 4, 1912

Appeal from St. Louis City Circuit Court.--Hon. D. Fisher, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Frank K. Ryan for appellant.

(1) The court should have given appellant's instruction No. 1 to find for plaintiff in the amount sued for, because, aside from the insufficiency of respondent's evidence as to the leased premises being untenantable, the respondent's evidence as to vacating said premises is not tenable; it appearing that respondent's tenant remained after such alleged vacating and during all the time covered by appellant's claim for rent in possession of the second and third stories of the leased building. Bless v Jenkins, 129 Mo. 647; Constant v. Abell, 36 Mo 174; 11 Am. and Eng. Ency. Law (2 Ed.), p. 459; Biggs v McCurley's Admr., 79 Md. 409; McFarland v. Pierson, 21 Ill.App. 566; Doolittle v. Selkirk, 28 N.Y.S. 43; Speckles v. Sacks, 1 E. D. Smith (N.Y.) 253; Wright v. Lattlin, 30 Ill. 296; Huber v. Ryan, 56 N.Y.S. 135. (2) The failure to tender possession of the entire leased premises alone disposes of respondent's contention that there was a constructive eviction. Bertram v. Martin, 90 Ill. 438; Patterson v. Graham, 40 Ill.App. 400; Lipran v. Osten, 93 Ill. 93; Henderson v. Squire, L. R. 4 Q. B. 170; Schilling v. Holmes, 23 Cal. 227; Campau v. Mitchell, 103 Mich. 617. (3) Section 7924, Revised Statutes 1909 (Sec. 2393, R. S. 1889), is no warrant for respondent's theory that such section covers a covenant to make repairs. O'Neil v. Flanagan, 64 Mo.App. 87. (4) Plaintiff's demurrer to the evidence under defendant's counterclaim should have been sustained, because such evidence did not show any damages that are recoverable in an action for breach of covenant to make repairs. Wisdom v. Newberry, 30 Mo.App. 241; Fisher v. Goebel, 40 Mo. 475; Sutherland on Damages (3 Ed.), sec. 873; Green v. Bell, 3 Mo.App. 29; Reinel v. Jones, 38 App.Div. (N.Y.) 441; Dormir v. Potter, 5 Denio, 306; Brooklyn v. Railroad, 47 N.Y. 475; Cook v. Soule, 56 N.Y. 420; Thompson v. Shattuck, 2 Met. 615.

R. F. Walker for respondent.

(1) The lease created a covenant that the landlord would give the tenant the quiet enjoyment of the premises during the term. Hamilton v. Wright, 28 Mo. 199; Geer v. Zinc Co., 126 Mo.App. 173; Beam v. Bakewell, 224 Mo. 227; Jackson v. Eddy, 12 Mo. 209; Dyett v. Pendleton, 8 Cow. 727; Wilson v. Finch Hatton L. R., 2 Ex. D. 336; Vann v. Rouse, 94 N.Y. 401; 1 Taylor on Landlord and Tenant, secs. 304, 318; People v. Murphy, 17 N.Y.S. (10 Hun) 151. Quiet enjoyment in this case means that the landlord will afford the tenant the opportunity to use the premises for the purpose for which they were rented. Subway Co. v. St. Louis, 169 Mo. 333; Witte v. Quin, 38 Mo.App. 681; Rogers v. Paint Co., 118 Mo.App. 303; Lynch v. Baldwin, 69 Ill. 210. The landlord's covenant to keep the roof and downspouts in repair, and that of tenant to pay rent, were mutually dependent and equally binding upon the parties. The landlord's failure to comply with his covenant forfeited his right to demand compliance by the tenant of hers. 3 Sutherland on Damages (3 Ed.), sec. 848, p. 2523; Christopher v. Austin, 11 N.Y. 216; Kew v. Trainor, 150 Ill. 150; Sigmund v. Newspaper Co., 82 Ill.App. 178; Royce v. Guggenheim, 106 Mass. 201; Piper v. Fletcher, 115 Iowa 263. An obligation to pay rent ceases when the tenant is deprived in whole or in part of the use of the premises by the landlord, the tenant's agreement having force only from the consideration of the enjoyment of the premises for which they were rented. Land Co. v. Seidel, 135 Mo.App. 185; Subway Co. v. St. Louis, 169 Mo. 333; Delmar v. Blumenthal, 118 Mo.App. 315; Underhill on Landlord and Tenant, p. 1385; Smith v. McEnamy, 170 Mass. 26; Heinrich v. Mack, 56 N.Y.S. 155; Colburn v. Morrill, 117 Mass. 262. (2) The failure of the landlord to keep the roof and downspouts in repair constituted an eviction, such failure resulting in depriving the tenant of the enjoyment of the premises. 2 McAdam on Landlord and Tenant (3 Ed.), 1291; Tallman v. Murphy, 120 N.Y. 351; Edmison v. Lowery, 3 S.D. 77; Insurance Co. v. Sherman, 46 N.Y. 372; Bissell v. Lloyd, 100 Ill. 214; 2 Tiffany on Landlord and Tenant, pp. 1160, 1266, 1267; Land Co. v. Seidel, 135 Mo.App. 185; Damkroeger v. Pearson, 74 Minn. 77; Hall v. Irwin, 78 A.D. 107, 79 N.Y.S. 614; 1 Taylor on Landlord and Tenant, sec. 309a; Tiedeman on Real Property, sec. 153; Barrett v. Boddie, 158 Ill. 479; Cheairs v. Coates, 77 Miss. 846; Upton v. Townsend, 17 C. B. 51; 11 Am. and Eng. Ency. Law (2 Ed.), 458, 461; Skaggs v. Emerson, 50 Cal. 3; Valentine v. Woods, 110 N.Y.S. 757; Brolaskey v. Loth, 5 Phila. (Pa.) 81; Rea v. Algren, 104 Minn. 316, 124 Am. St. Rep. 627; Bass v. Rollins, 63 Minn. 226; Alger v. Kennedy, 49 Vt. 109; Ash v. Meeks, 118 N.Y.S. 821. (3) A tenant evicted from a part of leased premises is under no legal obligation to pay rent for the balance, although he continues to enjoy it. 2 McAdam on Landlord and Tenant, sec. 419, p. 1435; and note; Anderson v. Insurance Co., 21 Ill. 601; Kip v. Merwin, 52 N.Y. 542. (4) Partial eviction from the premises by the acts of the landlord will relieve the tenant from the liability for rent upon any portion of the premises during the continuance of the eviction. Briggs v. Hall, 4 Leigh 48; Camarillo v. Fenlon, 49 Cal. 207; Warren v. Wagner, 75 Ala. 188; Fitchburg v. Melvin, 15 Mass. 270; Reed v. Reynolds, 37 Conn. 474; Walker v. Tucker, 70 Ill. 527; Hayner v. Smith, 63 Ill. 430; Peck v. Hiler, 24 Barb. 178; McClurg v. Price, 59 Pa. 420; Dry Goods Co. v. Pabst, 50 C. C. A. 295, 112 F. 381; 2 Tiffany on Landlord and Tenant, sec. 185, p. 1264; Sherman v. Williams, 113 Mass. 481; Minneapolis v. Williamson, 51 Minn. 473; Leishman v. White, 1 Allen, 489; Taylor on Landlord and Tenant (7 Ed.), secs. 378, 388; Wood on Landlord and Tenant, sec. 473; Subway Co. v. St. Louis, 169 Mo. 333; 2 Tiffany on Landlord and Tenant, sec. 182b, pp. 1160, 1266; Morris v. Kettle, 57 N. J. L. 218; Fudder v. Ruby, 76 Mass. (10 Gray) 285; Hayner v. Smith, 63 Ill. 430; Bergman v. Papia, 58 Misc. (N.Y.) 532. (5) Continued occupation of premises by the subtenant with the permission of the owner, without any lease or agreement to pay rent, and without rent being paid, created a tenancy at will between the landlord and Dr. Johnson. 1 Underhill on Landlord and Tenant, sec. 137, p. 189. (6) The landlord's express direction to the subtenant Johnson to "stay in the premises" after their abandonment by the tenant and her previous notice of such intention given the landlord and the subtenant constituted a waiver of the landlord's right to contend that the subtenant thereafter held under the lease from the tenant. Smith v. Huff, 141 Mo.App. 476. (7) The court did not err in refusing to give appellant's peremptory instruction at the close of respondent's testimony. Davies v. Vories, 141 Mo. 234; Gribble v. Everett, 98 Mo.App. 32; Oliver v. Love, 104 Mo.App. 73; Dry Goods Co. v. Pabst, 50 C. C. A. 295, 112 F. 381; Bank v. Gregg, 74 Mo.App. 639.

NORTONI, J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

NORTONI, J.

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 $ 6500, 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 the downspouts therefrom, on each recurring rain large quantities of water percolated...