Gay v. Davey
| Citation | 25 N.E. 425,47 Ohio St. 396 |
| Parties | GAY v. DAVEY et al. |
| Decision Date | 17 June 1890 |
| Court | United States State Supreme Court of Ohio |
Error to district court, Hamilton county.
Syllabus by the Court
1. Where a case triable by a jury is submitted to the court, and a motion for a new trial on the ground that the finding of the court is against the weight of the evidence is overruled if neither party is entitled to judgment on the pleadings and there is no agreed statement or finding of facts, a reviewing court, in reversing judgment because the court below erred in so overruling the motion for a new trial should remand the case for a new trial, and it is error in the reviewing court to render a final judgment in the case.
2. Under section 4113 of the Revised Statutes, providing that the lessee of any building, after it has, without fault or neglect on his part, been destroyed or so injured by the elements or other cause as to be unfit for occupancy, shall not be liable to pay rent to the lessor or owner thereof, a surrender of the leased premises is a condition annexed to the release of the obligation to pay rent, and is necessary to give the lessee the benefit of the relief provided for by the statute.
Lloyd & Taft , for plaintiff in error.
Jordan & Jordan , for defendants in error.
On the 7th day of July, A. D. 1879, James P. Gay leased to John R Davey and A. B. Allen, the defendants in error, certain premises in the city of Cincinnati for the term of three years from that day, the lessees to have the privilege of a further term of two years, commencing with the 7th day of July, 1882. The premises, used for manufacturing purposes, are described as situated in the city of Cincinnati, being three rooms on the front of the first, second, and third floors of James P. Gay's main building fronting on the north side of New street, and the room in the third story of the addition to the main building; also a strip of ground lying on the west side of the main building, being 12 feet in width on the north side of New street, and running back the same width to the building described as the addition to the main building, the lessor to erect a one-story brick office 12 feet by 16 feet adjoining the southwest corner of the building on New street, for occupancy by the lessees. As rent, the lessees were to pay during the term of three years the sum of $125 per month, payable monthly, commencing on the 7th day of August, 1879, and on the 7th day of each and every month thereafter during such term. The entire building, including the apartments leased to Davey and Allen, was destroyed by fire on the 11th day of December, 1880, but was rebuilt by the lessor, and was ready for occupancy in the early part of January, 1881. When the building was restored, the lessees declined to pay rent from the time of restoration, and the lessor commenced suit in the superior court of Cincinati to recover the rent from January 7, 1881, to May 7, 1881. The lessees set up in defense that, by the terms and provisions of the lease under which they had occupied the premises, it was stipulated that, if the occupied premises were destroyed or rendered untenantable by fire or unavoidable accident, they were not to be required to pay any rent thereafter; that the premises were totally destroyed on the 11th day of December, 1880; that they did not use, occupy, or enjoy the premises at any time thereafter; that the premises were destroyed without any default or neglect on their part; and that the lessees thereupon surrendered possession of the premises to the lessor. The lessor, in reply, denied that the premises included in the lease were totally destroyed by fire, and alleged that there was only a partial destruction of the same, the brick office not being materially injured, and continuing tenantable; and further denied that the premises were ever surrendered to the lessor by the lessees. The lease contained the covenant ‘ that said lessees will pay said rents, in manner aforesaid, except said premises shall he destroyed or rendered untenantable by fire or unavoidable accident.’ Before the trial, the death of the plaintiff was suggested, and it was ordered that the action be revived in the name of Sarah E. Gay, the plaintiff in error, as executrix of the last will and testament of James P. Gay, deceased. On the trial, a jury being waived, the court, upon the testimony, found in favor of the plaintiff, and entered judgment for the amount claimed, with interest and costs. The defendants thereupon filed their motion to set aside the judgment, and for a new trial, mainly on the ground that the finding of the court was against the weight of the evidence, which motion the court overruled. The defendants excepted, and by bill of exceptions placed all the testimony on the record. The defendants, on petition in error in the district court, assigned for error that the judgment rendered by the superior court was against the weight of the evidence, and that the superior court erred in overruling their motion for a new trial. The district court reversed the judgment of the superior court, and, proceeding to render such judgment as it considered that court should have rendered, rendered a final judgment for the lessees, John R. Davey and A. B. Allen, and dismissed the action of Sarah E. Gale, executrix. By this proceeding, it is sought to reverse the judgment of reversal, as also the...
To continue reading
Request your trial