Gulf Electric Co. v. Fried

• Decision Date: 06 December 1928
• Docket Number: 1 Div. 494
• Citation: 218 Ala. 684,119 So. 685
• Parties: GULF ELECTRIC CO. v. FRIED.
• Court: Alabama Supreme Court

119 So. 685

218 Ala. 684

GULF ELECTRIC CO. v. FRIED.

1 Div. 494

Supreme Court of Alabama

December 6, 1928

Rehearing Denied Feb. 2, 1929

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by the Gulf Electric Company against Ignatius Fried. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Thomas J., dissenting in part.

Counts in lessee's complaint for breach of agreement that there was elevator on demised premises held insufficient as against demurrer.

Count 1 declares upon the breach of an agreement entered into by plaintiff July 7 1926, by which defendant leased to plaintiff the east half of the ground floor, together with the entire second and third floors, of a certain three-story brick building in the city of Mobile, for occupation as an electric showroom, salesroom and office, for four years from November 1, 1926, at a specified rental, "in which said lease defendant agreed as follows: 'The said Gulf Electric Company has the privilege of the use of the said elevator in said building'--which said agreement the defendant breached in that the said elevator in said building, at the time the said lease was executed and up to the present time, had and has no motor or other motive power, and by reason thereof the said elevator cannot be operated or used, and the plaintiff therefore, is deprived of the use of the second and third floors of said building, in that he has no method of reaching the second and third floors of said building, except by stairway, which renders it impossible to use said upper floors. And the plaintiff avers that when said lease was made the defendant knew that the plaintiff was leasing said building for the purpose of conducting therein a merchandise business, and that the plaintiff intended to use [the] second and third floors for the storage of merchandise, and that the plaintiff could not use said second and third floors for this purpose without the use of an elevator, and that the plaintiff was not advised by the defendant that the said elevator was defective, in that there was no motor or other motive power therein, so that the same could be operated, all to the damage of plaintiff," etc.

The demurrer to this count is as follows:

(1) Because the facts stated in said complaint do not show that the defendant breached the contract alleged.

(2) Because said complaint shows that the defendant did not breach the provision of the contract alleged in the complaint.

(3) Because said complaint does not allege that the defendant warranted or represented that the elevator referred to in the lease had any motor or other motive power.

(4) Because under the facts alleged in the complaint, the defendant was under no duty to furnish for the use of the plaintiff any motor or motive power for the operation of the elevator.

In the second count of the complaint the breach is alleged to have consisted in the fact that there was no elevator in operating condition in said building. It is further averred in count 2 that defendant knew the purpose for which plaintiff was leasing said building, and that it intended using the second and third floors for storage of merchandise, and that plaintiff could not use said second and third floors for this purpose without the use of an elevator, "and to induce the plaintiff to lease said building the defendant's agents, Yeend Bros. Realty Company, through whom the said lease was made, falsely represented to the plaintiff that the said building contained an elevator in operating condition, and plaintiff, relying on said representation, leased the said building from the defendant; that the inducement moving plaintiff to take the lease on said building was the representation by defendant's agents that the said building contained an elevator in operating condition, and that the plaintiff have the use thereof, and, but for said covenant and representation, the plaintiff would not have leased the said building."

The demurrer to this count is the same as that to count 1, with these additional grounds:

(5) Because said count claims damages for breach of contract, in that there was no elevator in operating condition in the building leased, and said count fails to allege any facts showing that there was any agreement or warranty, expressed or implied, in said contract, that the elevator in said building was in operating condition.

(6) Because said count seeks to recover damages for breach of contract, in that there was no elevator in operating condition in the building leased, and fails to allege any facts showing that there was an agreement or warranty, expressed or implied, that there was in said building an elevator in operating condition, or to show that the Yeend Bros. Realty Company was authorized by the defendant to make the representations to the plaintiff alleged in said count to have been made by it.

(7) Because the alleged false representations made by Yeend Bros. Realty Company, as to the condition of the elevator, alleged to have been in the building, did not operate to add either a warranty or a term to said lease contract.

(8) Because the alleged false representations made by the Yeend Bros. Realty Company, if made at the instance and request of the defendant, might have operated as a ground for the rescission of the contract, but could not add to said contract or lease any additional terms of any warranty as to the condition of the elevator in the building leased.

Count 3 is the same as count 2, except it alleges that:

"Although it has repeatedly demanded of the defendant that he install on said premises an elevator in operating condition, the defendant has refused and still refuses to install said elevator in operating condition."

This count also avers that defendant's agents, through whom the lease was made, and who "were then and there acting in the line and scope of their employment by the defendant, and in and about the business of the defendant, duly authorized so to do by the defendant," falsely represented to plaintiff that said building contained an elevator in operating condition, etc.

The same grounds of demurrer as interposed to counts 1 and 2 were filed as to count 3.

Count 4 is in substance as follows:

And plaintiff avers that the defendant, Ignatius Fried and the said Yeend Bros. Realty Company, who were then and there acting as the agents of the said Ignatius Fried for the purpose of renting said property to

the plaintiff, and who were then and there duly authorized by the defendant to act as his agents as aforesaid, and who were then and there acting in the line and scope of their employment by the defendant, and in and about the business of the defendant, as inducement to the plaintiff to rent the aforesaid premises, did say and assert to the plaintiff as a truth that there was an elevator in operating condition in said building, so that the plaintiff could use the said elevator from the first to the second and third floors of said building.

And the plaintiff avers that it did not know, nor did it inform itself before the execution of said lease, whether said declaration of the defendant and the Yeend Bros. Realty Company was true or not, but that it believed it to be true, and so believing, and induced thereby, it made and executed with the defendant on the 7th day of July, 1926, a lease of the aforesaid property.

And plaintiff avers that there was no elevator in operating condition in said building at the time the said lease was executed, and by reason thereof no elevator can be used or operated by the plaintiff, and the plaintiff is therefore deprived of the use of the second and third floors of said building, in that it has no method of reaching the second and third floors of said building, except by stairway, which is burdensome and impracticable.

And plaintiff further avers that, without the said inducement so held out to it by defendant and the Yeend Bros. Realty Company, and so confided in and trusted by plaintiff, it would not have made said contract with defendant; and it avers that, by reason of the fact that there is no elevator in said building in operating condition; it has suffered great damage in the sum of $5,000, wherefore the plaintiff brings this suit.

To this count defendant demurred as follows:

(1) Because it does not allege with sufficient particularity when the misrepresentation charged was made.

(2) Because it does not allege where the misrepresentation charged was made.

(3) Because it alleges that such misrepresentation was in part by Yeend Bros. Realty Company, without alleging through what natural person Yeend Bros. Realty Company acted in making such misrepresentation.

(4) Because it does not allege to what natural person, acting on behalf of the plaintiff, such misrepresentation was made.

The grounds of the demurrer to count 5 (the substance of which is stated in the opinion) were as follows:

(1) Because the said count is confusing as the whether T.A Yeend was acting as the agent to Yeend Bros. Realty Company, Inc., or as the agent of the defendant.

(2) Because the allegations are indistinct and uncertain as to whether the plaintiff relied upon the representations made by T.A. Yeend, as agent of the defendant, or the Yeend Bros. Realty Company, Inc., as a corporation, acting by and through T.A. Yeend, its president.

(3) Because said count does not allege that the defendant or his servant or agent represented that there was an elevator in a then operating condition.

(4) Because said count does not allege that there was any representation that the elevator in said building was equipped with operating machinery.

(5) Because from aught that appears the plaintiff could, by installing power and machinery, have easily used the elevator and had use of the

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