Ideal Furniture Co. v. Mazer

• Decision Date: 07 June 1930
• Citation: 28 S.W.2d 974,234 Ky. 665
• Parties: IDEAL FURNITURE CO. v. MAZER et al.
• Court: Kentucky Court of Appeals

28 S.W.2d 974

234 Ky. 665

IDEAL FURNITURE CO. v. MAZER et al.

Court of Appeals of Kentucky

June 7, 1930

Appeal from Circuit Court, Perry County.

Action by Max Mazer and another against the Ideal Furniture Company wherein defendant filed a counterclaim. Judgment for plaintiffs, and defendant appeals.

Affirmed in part, and in part reversed, with directions.

Wootton & Wooton and G. C. Wilson, all of Hazard, for appellant.

W. A Stanfill and T. E. Moore, both of Hazard, for appellees.

DIETZMAN J.

In September, 1927, the appellees leased to the appellant for a period of five years, a storeroom in a building which they were then constructing, the rent to begin when the storeroom was ready for occupancy. This condition being fulfilled in February, 1928, the appellant took possession of the storeroom and continued in the occupancy of it until the latter part of December of that year. The monthly rent reserved was $137.50 but, on taking possession of the place the appellant contended that the floor space of the storeroom as built was not as large as the appellees had contracted by the lease to rent to the appellant, for which reason it deducted $12.50 from the first month's rent and continued to deduct this amount from the subsequent months. Although appellees insisted that they did not assent to this reduction in the rent, the jury in this case found that they did, and as the appellees have prosecuted no cross appeal, we need not discuss this phase of the case further. The evidence satisfactorily discloses that when the appellant went into the possession of the storeroom the apartments which had been constructed above it had not then been quite completed. There were twelve of these apartments. The storeroom which was on the first floor appears to have been constructed without any ceiling and the service pipes for water, heat, and drainage to the twelve apartments ran up the side walls of this storeroom and across the joists upon which the floors of the second-floor apartments rested. The storeroom was used by the appellant as a warehouse for its stock of goods, consisting of stoves, mattresses, overstuffed furniture, beds, caskets and the like. It seems that at the time when the appellant took possession of the storeroom, there was a leak coming from one of the service pipes overhead. Whether or not the leak from this pipe did much or little damage cannot be definitely told from this record; but, be that as it may, the record satisfactorily establishes that this leak was promptly repaired and that appellant continued to occupy the premises until they moved in the following December. However, on four and possibly five other occasions during appellant's occupancy of the storeroom, water came from overhead upon the goods and merchandise of the appellant stored in this warehouse. It is not clear how close together these occasions were. The evidence for the appellant is to the effect that the water came from leaks in the service pipes overhead, although its evidence on this point is not wholly satisfactory. The evidence of the appellees is to the effect that the cause of the water coming down as it did was the overflow, on two and possibly three occasions, from the toilets in the apartments upstairs which the tenants had permitted to become clogged, another overflow from a bath tub where the bather had forgotten to turn off the water, and still another overflow from the kitchen sink where the tenant had forgotten to shut off the faucet. The appellant made complaints about these overflows which were damaging its property and now contends that on many occasions prior to and especially in December, 1928, the appellees told it that if it did not like what was going on to move, that finally in December it accepted the appellees' invitation to move, and did move. The appellees deny making the statements attributed to them. Their version of these conversations is that they told the appellant: "If you want to move that's with you, but I will hold you to the rent." We can find no evidence in the record that appellant ever told appellees that it was going to move prior to the time it received a letter from appellees' lawyer to the effect that appellees would hold appellant to the lease even though appellant moved. This letter was mailed on December 24, 1928. After appellant moved, it sent the key back to the appellees, who promptly returned it to the appellant and the place was vacant from the time the appellant moved up to the trial of this action, and, as we learn...