Jones v. Millsaps

• Decision Date: 30 October 1893
• Citation: 71 Miss. 10,14 So. 440
• Court: Mississippi Supreme Court
• Parties: W. C. JONES v. R. W. MILLSAPS ET AL

14 So. 440

71 Miss. 10

W. C. JONES v. R. W. MILLSAPS ET AL

Supreme Court of Mississippi

October 30, 1893

FROM the circuit court of the first district of Hinds county, HON J. B. CHRISMAN, Judge.

The appellees are the owners of a two-story brick building in the city of Jackson, the lower story of which is arranged for a store, the upper story being divided into small rooms or offices. On the eighteenth day of July, 1892, they entered into a written contract with appellant by which he leased the lower story of the building for one year, beginning August 1 1892. The written contract contained no stipulation obligating the lessors to make repairs, but it provided for certain changes and repairs to be made by the lessee, in order to enable him to carry on the business of a merchant in the store. It contained a stipulation that, in case of fire or the destruction of the building from any other cause, rent should cease until the house should be rebuilt.

This action of covenant was brought by the appellant against the lessors, alleging the execution of the lease, and that plaintiff had placed a stock of merchandise in the store that defendants, by reason of the said contract of lease became bound to keep that part of the building above the leased premises, which was alleged to be under their exclusive control, in good order and repair; that they neglected to do this, and the roof became in bad condition, when plaintiff urged them to repair the same, which they neglected to do, and that afterwards, during the term, by reason of a heavy rain and the leaks in the roof, the stock of clothing of plaintiff, without his fault, was wet and damaged; "that the cost and carriage value of the goods so damaged, to which a schedule is made exhibit A hereto, is the sum of $ 445.78, wherefore plaintiff says that he is injured and damaged to the value of $ 400, and therefore brings suit."

The written contract was made an exhibit to the declaration, as also a bill of particulars of the goods alleged to have been damaged. The defendants demurred to the declaration, on the ground that it was vague and indefinite as to the damages alleged to have been sustained; that it failed to show any covenant on the part of defendants to repair, and that plaintiff was not entitled to recover. The demurrer was sustained, and, plaintiff declining to amend, judgment was entered dismissing the case, from which the plaintiff appealed.

Affirmed.

E. E. Baldwin, for appellant.

The general rule in America is, that where a landlord leases a part of a building to a tenant and retains the remainder under his exclusive control, he is bound to keep such parts in repair so as to protect the demised premises. Toole v. Beckett, 67 Maine, 544; Kirby v. Association, 14 Gray (Mass.), 249; Priest v. Nichols, 116 Mass. 401.

Where a landlord rents a room in a building for a store, he agrees to keep the remainder of the building in repair sufficient to protect the demised premises. Bissell v. Lloyd, 100 Ill. 214; Stubblefield v. Soule, 21 Ill. 154; 12 Am. & Eng. Enc. L., 729.

The case of Cole v. McKey, 66 Wis. 500, is distinguishable from this. There, the defect complained of was in a common entry or passage-way, which was under the joint control of the landlord and tenant.

The tenant's remedy, in a case like this, is by action of covenant. Tibbits v. Percy, 24 Barb. (N. Y.), 39, and the measure of damages is the loss sustained. Cook v. Soule, 56 N.Y. 420.

We respectfully insist that the defendants were liable for the damages sustained, and that the demurrer should have been overruled.

Brame & Alexander, for appellees.

1. The declaration is insufficient as to the statement of damages. It does not show how much the goods were damaged, nor is it averred that after the goods were wet they were valueless. Non constat, but that they were sold for a profit. Plaintiff could not put the goods aside merely because they had been wet, and charge defendants with the cost and carriage value to him. As to the quantum of damages, there is nothing in the declaration upon which the defendants could take issue. The concluding sentence is merely the pleader's conclusion from the facts before stated, and is not of itself a statement of facts. It was not intended as a statement of the amount of damages, but as a prayer for judgment. In all cases a plaintiff must allege what it is necessary for him to prove. Appellant's course in refusing to amend the declaration makes every defect vital, whether it arises from a bad case or an insufficient statement of it.

2. It is well settled that the landlord is under no implied duty to repair. Taylor's Landlord & Tenant, 575, 576; 2 Woods' Landlord & Tenant, 598. Even if the premises become dangerous, and the landlord has notice of this, he is under no duty to repair. Ib., 599.

The rule is the same where the landlord rents the lower story of a building and retains control of the remainder. Weinsteine v. Harrison, 66 Texas, 546; Ward v. Fagin, 101 Mo. 669; Krueger v. Ferrant, 29 Minn. 385; Purcell v. English, 86 Ind. 34; Cole v. McKey, 66 Wis. 500; Loupe v. Wood, 51 Cal. 586; 54 N.Y. 119.

Appellant relies upon Toole v. Beckett, 67 Maine, which follows the Massachusetts court in holding what appears to be a doctrine contrary to the above, but in those cases the landlord was held liable to the tenant under circumstances that would fix liability on any other person; they rest upon negligence, and not upon any contractual relation.

But these earlier cases in Maine and Massachusetts have been carefully reviewed by the courts of other states, and condemned as being opposed to principle and authority. See especially Krueger v. Ferrant, 29 Minn. 385, and Cole v. McKey, 66 Wis. 500. The rule for which we contend is established in America, and is also the English rule, as will be seen by the cases cited in the above authorities.

Bissell v. Lloyd, 100 Ill. 214, cited by opposite counsel, is not in point. Besides, the opinion is not supported by reason or authorities. There the lease reserved to the landlord an undivided half-interest in the second floor, and the contract provided that the tenant was to make necessary repairs in the store-room. Inasmuch as the landlord expressly reserved an undivided interest in two of the rooms, and provided that the tenant should repair the others, the court held that he, by implication, covenanted to keep the other rooms in repair.

The rule exempting the landlord from the implied duty to repair is not a hard one. The tenant may always protect himself by covenants. In many states statutes have been passed imposing the duty on the lessor of making repairs, but there is no such statute in this state.

Argued orally by E. E. Baldwin, for appellant, and C. H. Alexander, for appellee.

OPINION

WOODS, J.

While the declaration, in some of its allegations, is somewhat indefinite or uncertain, yet we do not think it so indefinite or uncertain, as a whole, as that the precise nature of the complaint is not apparent. While parts of the language employed are involved or obscure, the pleading does, nevertheless, contain a statement of the facts constituting the cause of action, in ordinary language.

Our statutes are designed to obviate the necessity for, and the use of all technicalities in all pleadings, and to enable every litigant to have his complaint entertained and heard on his stating the facts constituting his cause of action in ordinary and concise language. If irrelevant or redundant matter is inserted in the pleading, the opposite party should move to strike out such matter. If the allegations of the pleadings are so indefinite or uncertain that the precise nature of the complaint is not apparent, on motion of the opposite party the court will cause the same to be made definite and certain, or, this failing, will strike the pleading from the files. Code 1892, § 704.

On this branch of the case, and beyond these general observations, we think it proper only to add two particularizations, viz.: 1. The first, special cause of demurrer is not well taken. On examination of the written contract, we find that the lessee the plaintiff below covenants to make certain specific repairs and alterations in and upon the leased store-room and for other repairs that may be necessary, or changes which he may deem requisite. That all the repairs and alterations covenanted for on the lessee's part are limited to the leased store-room is quite manifest. 2. The eighth special ground of demurrer is not maintainable. Reference to the transcript before us shows that it is the "cost and carriage and value of the goods" damaged which the schedule filed with the declaration contains, but this schedule was unnecessary, and this part of the declaration may be treated as surplusage. With this useless matter disregarded, we...