Jespersen v. Deseret News Pub. Co., 7443
| Decision Date | 02 January 1951 |
| Docket Number | No. 7443,7443 |
| Citation | 225 P.2d 1050,119 Utah 235 |
| Parties | JESPERSEN et al. v. DESERET NEWS PUB. CO. |
| Court | Utah Supreme Court |
Ben E. Roberts, Salt Lake City, for appellant.
Wm. S. Livingston and Allen & Ruckenbrod, Salt Lake City, for respondents.
Defendant appeals from a judgment awarding plaintiff $2,025 balance of the unpaid rent under the lease, $3,000 damages for the collapse of the rented building and $500 attorney's fees. The question is presented: Does the evidence sustain the court's finding that the building collapsed as the result of unreasonable use thereof by overloading and not as the result of only reasonable use or from damages caused by the elements? If the answer to this question is in the affirmative, then the judgment must be approved; otherwise the award of damages to the property cannot be sustained and the award for the unpaid rentals can only be sustained on the common law doctrine that where the leased premises are destroyed without the fault of the lessee he must still pay the full rent as provided in the lease.
The record discloses that on August 20, 1948, the defendant, the appellant herein, had a number of carloads of newsprint on railroad cars for which it needed immediate warehouse space, whereupon one of its agents contacted Mr. East, one of the plaintiffs and respondents herein, to inquire about renting such space. After an inspection trip to the premises by Mr. East and defendant's agents at which time the purposes for which these premises were desired and the nature of the material to be stored therein were discussed, a written lease of the premises involved herein was entered into on August 23, 1948, between plaintiffs as lessors and defendant as lessee for a period of one year to be paid for at the rate of $225 per month. The lease among its provisions contained one that the lessee agreed to deliver up the premises at the expiration of the term in as good order and condition as it was when it was entered, 'reasonable use and wear thereof and damage by the elements excepted'.
The leased premises were built during the war by the War Department for use in receiving and sending out materials and were constructed for a temporary purpose and therefore some of the materials were very poor and not made to withstand a heavy load for any great length of time. Some of the joists were of sugar pine which is considered a very poor quality of lumber and breaks easily. Defendant's agent testified that before leasing the premises he was doubtful that the flooring would sustain the load which it intended to store there, but was assured by plaintiff East that it would hold much heavier loads. East did not recall having made any such statement to defendant's agent, although he thought it would stand the load; however, he was not an engineer and he and his partners had not used any part of the premises before the lease in question was executed.
On August 23, 1948, defendant stored in those premises rolls of newsprint which had a diameter of 38 inches and were in four sizes, the 66-inch rolls weighing approximately 1,600 pounds apiece, the 49 1/2 inch rolls weighing approximately 1,200 pounds each, the 33-inch weighing approximately 800 pounds each and the 30 inch weighing approximately 650 pounds each. These rolls of newsprint were stacked on top of each other as compactly as possible with passageways allowed for entrance and egress. On the 19th of September the flooring over which the 66-inch rolls were stacked gave way and broke. The day before and on the morning of that day there had been an unprecedentedly large rainfall. Both plaintiffs and defendant introduced expert testimony as to the effect of this rainfall on the footings or pillars sustaining the floor. Plaintiffs' experts testified that upon examination of the premises and the condition the footings were in after the storm that the storm had no effect on them and gave it as their opinion that the cause of the collapse of the floor was overloading. Defendant's expert testified that because the soil upon which the premises rested was of such a nature as to readily allow a sinking of the footings that it was his opinion the rainfall had accumulated sufficient water around the pillars...
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Richard Barton Enterprises, Inc. v. Tsern, s. 940295
...premises. See General Ins. Co. of Am. v. Christiansen Furniture Co., 119 Utah 470, 229 P.2d 298 (1951); Jespersen v. Deseret News Publishing Co., 119 Utah 235, 225 P.2d 1050 (1951); 3A Arthur L. Corbin, Corbin on Contracts § 686 (1960); 6 Samuel Williston, A Treatise on the Law of Contracts......
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...to the contrary, the landlord had no duty to make repairs during the course of the tenancy. See Jespersen v. Deseret News Publishing Co., 119 Utah 235, 225 P.2d 1050, 1053 (1951). Under the law of waste, it was the tenant's implied duty to make most repairs. See Cluff v. Culmer, 556 P.2d 49......
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...See, e.g., General Ins. Co. of America v. Christiansen Furniture Co., 119 Utah 470, 229 P.2d 298 (1951); Jespersen v. Deseret News Publishing Co., 119 Utah 235, 225 P.2d 1050 (1951); Stone v. Sullivan, 300 Mass. 450, 15 N.E.2d 476 (1938). This rule is based on an increasingly antiquated vie......
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