Green v. George
| Citation | 289 Ky. 833 |
| Court | United States State Supreme Court (Kentucky) |
| Decision Date | 27 March 1942 |
| Parties | Green et ux. v. George et al. |
1. Appeal and Error. — Where lower court overruled demurrer to certain paragraphs of petition and sustained demurrer as to other paragraphs, and plaintiffs moved to dismiss without prejudice as to paragraphs respecting which demurrer was overruled, appellate court was not required to consider latter paragraphs.
2. Trial. — An action for reformation of a written lease is solely an "equitable action," and not an "ordinary action," and circuit court, therefore, did not err in transferring case to equity docket before answer was filed (Civil Code of Practice, sec. 6; sec. 10, subd. 2).
3. Pleading. — Where circuit court sustained demurrer to petition, except two paragraphs, which plaintiffs asked to be dismissed without prejudice, court properly dismissed entire petition when defendants declined to plead further.
4. Appeal and Error. — Where circuit court sustained demurrer to petition, except two paragraphs, plaintiffs' action in moving to dismiss entire petition did not constitute invited error so as to preclude appellate review, but their action constituted a mode of procedure to have Court of Appeals determine whether trial court erred in sustaining demurrer to those paragraphs of petition, since an order sustaining or overruling a demurrer is not "final order" until judgment is entered thereafter.
5. Reformation of Instruments. — The general rule is that, in pleading a cause for reformation of a contract, there must be set forth in clear and concise language grounds for reformation, agreement actually made, and agreement parties intended to make.
6. Reformation of Instruments. — In action by lessees of hotel for reformation of lease, paragraph of petition alleging that lessors falsely represented the plumbing and heating systems to be in good condition, that there were latent defects therein unknown to lessees, who relied on lessors' representations, that lessees would not have signed contract but for such false representations, was insufficient, as against demurrer, for failing to allege what true agreement between parties was, or how reformed contract should read.
7. Fraud; Reformation of Instruments. — A petition by lessees of hotel alleging that lessors made false representations that heating and plumbing systems were in good condition and in such repair that lessees would not be required to make any expenditures thereon during their tenancy, that lessees relied thereon, and that defects in heating and plumbing systems were latent, though not stating facts on which equity would reform a contract, did state a cause of action at law for fraud.
8. Fraud. — Where landlord falsely represents conditions of property, tenant can recover only reasonable cost of making necessary repairs and cannot recover damages to goods or business resulting from unrepaired defects.
9. Fraud. — A paragraph of a petition by lessees, alleging that they expended specified sum in repairing a furnace which lessors had represented was in good condition and would not need repairing during tenancy, stated a cause of action for fraud.
10. Fraud. — Lessees of hotel could not recover amount expended in excessive water bills by reason of leaks due to defective plumbing, notwithstanding lessors had represented that plumbing was in good repair and would not need to be repaired by lessees during their tenancy.
11. Fraud. — Lessees of hotel could not recover damages allegedly sustained from loss of business due to defective plumbing and heating systems, notwithstanding lessors alleged false representations that plumbing and heating systems were in good condition and would not require any repairs during tenancy; their damages being limited to reasonable cost of making necessary repairs.
12. Fraud. — The alleged fraudulent representations of lessors to prospective lessees that they would redecorate, paint, and paper hotel were mere promises in futuro, and would not support an action for fraud subsequently brought by lessees on lessors' failure to perform the promises, where lessees saw condition of hotel before leasing property.
13. Fraud. — Where lessees of hotel, in lieu of rent, agreed to furnish to lessors meals for four or five persons, all meals missed to be paid for by lessees in cash at specified rate, the fact that certain amount was paid to lessors by lessees because of lessors' alleged false representations that a member of their family missed meals did not give lessees right to recover amount so paid; there being no requirement in lease that persons to be furnished meals were to be members of lessors' family.
14. Fraud. — Where lease recited that lessors would furnish electricity to lessees at 5 1/2 cents per kilowatt hour, allegation of lessees' petition that lessors falsely represented that electric current cost them 5 1/2 cents per kilowatt hour, when, in fact, it cost only 4 cents, was insufficient, as against demurrer, to charge fraud by lessors, in absence of allegation of contract provision that lessors were to furnish electricity to lessees at cost.
Appeal from Clark Circuit Court.
Marcus C. Redwine for appellants.
S.T. Davis for appellees.
Before W.J. Baxter, Judge.
Reversing.
The defendants, C.B. and W.W. George, are the owners of the St. George Hotel located in Winchester, Ky. By a written contract dated March 15, 1939, they leased this hotel for a period of two years to the plaintiffs, George C. Green and wife, Marguerite, who operated same for about sixteen months. There were certain business establishments on the ground floor of the building and the lease did not include that floor, but only the second and third stories appear to have been used for hotel purposes. The entire building had one heating plant which the contract obligated the lessees to operate and to keep in proper repair. The lessees agreed to pay the lessors 5 1/2c per kilowatt hour for all current used, which rate was subject to change if the utility company changed its rates.
In the contract the lessors reserved seven specific rooms and two adjoining baths for their own use. It was further provided that the lessees would furnish the lessors board for five persons, or if the lessors preferred, the lessees would furnish them board for four persons and in lieu of the board for the fifth person, they would furnish board for all of lessors' guests, at the rate of 20c per meal. All meals missed by the lessors during the month "will be paid for by the lessees in cash at the rate of 20c per meal, or lodging on the first day of each month thereafter."
The lease further provided that the lessees are to keep the heating plant and the plumbing in proper repair, and required a deposit of $200 in cash with the lessors as security for lessees' performance of the contract. No rental is provided in the lease and it appears that the obligations imposed upon the lessees of furnishing the coal, utilities, keeping the heating and plumbing in proper repair and furnishing seven rooms to the lessors and board for five persons, or for four persons and all guests of lessors, was in lieu of rent.
On August 30, 1940, the lessees brought this action at law against the lessors. The first paragraph alleged that the lessees were inexperienced in operating a hotel and the lessors were experienced in such matters, especially as to the plumbing and heating equipment in the hotel, and that the lease contract was signed through mistake on the part of the lessees as a result of fraud practiced on them by the lessors; that as a result of the lessors' refusal to redecorate the hotel (no mention of which was made in the contract), and to repair the plumbing, the hotel has been condemned by the State Board of Health, and the lessees have been damaged by the breach of contract by lessors "as hereinafter set out." Then follow paragraphs two to seven wherein the damages are alleged, ending with a prayer asking that the contract be reformed and a judgment for $841.52 in damages against defendants.
We will briefly take up the material allegations in each of these paragraphs. The second paragraph alleges an overcharge by the defendants of 1,019 kilowatt hours at 5 1/2c, or $56.04; also, that the defendants charged plaintiffs at the rate of 5 1/2c per kilowatt hour while defendants only paid 4c, and on the current consumed this item amounted to $126.73, making a total of $182.77, which the plaintiffs seek to recover in this paragraph. In paragraph three plaintiffs alleged they should recover $13.95 for replacing a worn out part of the furnace. In paragraph four they allege they should recover $130.40 which they paid defendants for meals missed by one Kate George, whom defendants fraudulently led plaintiffs to believe was a member of their family when she was not, and plaintiffs ask that the contract be reformed so as to obligate them to furnish board only for defendants' family of four persons. In paragraph five plaintiffs alleged they were caused to expend $64.40 in excessive water bills, by reason of defendants' failure to repair the plumbing. In paragraph six plaintiffs alleged that on account of the failure of defendants to carry out their contract in repairing the plumbing and heating systems and in allowing parts of the hotel to become "untenantable, uninviting, uncomfortable and unattractive" they have lost business in the sum of $250 which they should recover from defendants. The seventh paragraph alleges the plaintiffs have performed their part of the contract and they demand the return of the $200 deposited with defendants to guarantee their compliance with the terms thereof.
The court sustained the defendants' motion to transfer the cause to equity and to "divide the second paragraph into 2a and 2b." Thereupon defendants filed a general demurre...
To continue reading
Request your trial