Guynn v. Tremont Hotel Company

• Decision Date: 06 January 1921
• Docket Number: 10,337
• Citation: 129 N.E. 336,75 Ind.App. 647
• Parties: GUYNN v. TREMONT HOTEL COMPANY
• Court: Indiana Appellate Court

129 N.E. 336

75 Ind.App. 647

GUYNN v. TREMONT HOTEL COMPANY

No. 10,337

Court of Appeals of Indiana

January 6, 1921

Rehearing denied April 5, 1921.

Transfer denied May 20, 1921.

From Wabash Circuit Court; Milo Feightner, Special Judge.

Action by Katherine M. Guynn against the Tremont Hotel Company. From a judgment for defendant, the plaintiff appeals.

Reversed.

D. F Brooks, for appellant.

A. H. Plummer, Walter G. Todd, F. W. Plummer and B. F. Watson, for appellee.

OPINION

NICHOLS, J.

The complaint in this action was for the recovery of the possession of real estate because of the non-payment of the rent. There was an answer in denial and a counter-claim setting up a breach of the covenants of the lease, to the effect that appellant should at all times maintain the roof on the building and make certain repairs, and permanent and lasting improvements, the breach of which covenant resulted in damage to appellee, for which damage appellee seeks to recover and by reason of which appellee claims that there is no rent due appellant.

Appellant filed a motion to strike out the counter-claim which was overruled, and thereupon filed a demurrer thereto, which was also overruled. Each of these rulings is assigned as error.

It appears in the complaint that the lease was for ten years and commenced in the year 1908, and by the counter-claim that, except in one year, the roof leaked every time there was a rain and destroyed the walls, beds, bedding and carpets, and that appellee was required to make repairs because of such leaks, and at times was not able to let rooms to patrons; that it had notified appellant to repair the roof, and that she had attempted to repair it, but never succeeded in making it waterproof, and that by reason of leaks, appellee was required to rent rooms for its help and was required to employ additional help to care for the interior of the building. There was a bill of particulars commencing with 1908, the date of the lease, containing the charges for loss to rooms, labor for cleaning rooms, for paper hanging, painting, loss of meals, loss of bedding, carpets and similar statements for each year, except the one during the time appellee occupied the building. There is also an averment that appellant had agreed to keep the front of the building painted, but that it had not been painted for six years, and had become unsightly, thereby depreciating the rental value. It appears by the pleadings that the rent, which was payable monthly, had been paid until June, 1917, but it does not appear that any claim was ever made for any damages, until by way of the counter-claim when suit for possession was commenced. In Hendry v. Squier (1890), 126 Ind. 19, 25 N.E. 830, the action was for rent due and unpaid, in which action the tenant filed a counter-claim for damages to goods because of a leaky roof. As in the instant case, the tenant knew of the leaky condition, but failed to make repair, and permitted his goods to remain in the building until damaged. The court held that it would be manifestly unjust to hold that even where a landlord had contracted to make all necessary repairs, the tenant might permit his goods to so remain beneath a leak in the roof which it would cost but a trifle to repair, and which, if left out of repair, would cause large damage to his goods, and subject the landlord to the payment of such damages.

In Hamilton v. Feary (1894), 8 Ind.App. 615 52 Am. St. 485, 35 N.E. 48, after citing and discussing the case of Hendry v. Squier, supra, and other cases, the court says on p. 623, "Under the principle that it is his duty to reduce the damages as much as reasonably...