Kann v. Brooks
| Decision Date | 16 April 1913 |
| Docket Number | No. 7,833.,7,833. |
| Parties | KANN v. BROOKS et. al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Monroe County; James B. Wilson, Judge.
Action by William L. Kann against Morton F. Brooks and another. From a judgment for defendants, plaintiff appeals. Affirmed.Lovett & Slaymaker, of Anderson, and R. H. East, of Bloomington, for appellant. Brooks & Brooks, of Bedford, and Miers & Corr, of Bloomington, for appellees.
This is a suit by appellant against appellees to recover damages for an alleged breach of the covenants of a lease. Appellant has assigned as error the overruling of his motion for a new trial.
The lease, which was for a stone mill, was executed on January 12, 1903, and by successive continuations was in force until March 31, 1908. The complaint avers breaches of the covenants to keep the property in good and sufficient repair. The covenants relied on are as follows: “And the said Brooks-Curtis Stone Company hereby covenants and agrees *** to use due care, and at the termination of this lease surrender the possession of the said premises and appurtenances to the said William L. Kann in like order and repair as the same now are, reasonable wear and tear excepted; *** that they, the said Brooks-Curtis Stone Company, will keep said premises and articles hereby leased in good and sufficient repair at their, the said Brooks-Curtis Stone Company's, expense.”
The complaint asks damages for the removal of a drafting room from the premises, two shafting belts and other parts of the equipment, for the cost of a new roof put on the building by appellant after the termination of the lease, the cost of building a practically new tramway, the cost of repairing the engine and boiler, and of repairing or replacing other tools and parts of the equipment connected with the mill. It is alleged that appellees wrongfully suffered and permitted the mill, buildings, tramway, and other parts of the plant, tools, and appliances to become out of repair, and failed and neglected to make the necessary repairs thereto required by the lease.
The case was tried by the judge, who made a general finding and rendered judgment in favor of the appellees. It is the contention of appellees that they made all the repairs that were necessary and required by their lease during the time of their tenancy, and that they removed no property from the premises which belonged to appellant.
[1] Upon many of the items there is a sharp conflict in the testimony; but there is ample evidence tending to support the finding of the trial court, and under the well-recognized rules of this court we will not disturb the judgment, where to do so we are required to weigh the evidence.
The principal question in issue arises on the construction of the lease. Appellant contends that under the lease appellees were bound to keep the premises and the leased articles appurtenant thereto in good and sufficient repair at their own expense, including the repairs made necessary by the natural wear, decay, and use of the plant and premises during the term of the lease. Appellees contend that the lease only bound them to make such repairs as were necessary to keep the premises, leased articles, and equipment of the plant in as good a condition and repair as they were in at the beginning of the lease, reasonable wear and tear excepted.
[2] The appellant contends that the latter clause in the lease, which requires appellees to pay for the repairs, is absolute and unconditional, and binds appellees to make good all depreciation in the property, regardless of the cause. Where a lease or other writing is unambiguous, it is the fundamental rule of construction that it shall be so interpreted as to carry into effect the intention of the parties expressed by the language employed. Blythe v. Gibbons, 141 Ind. 332, 334, 35 N. E. 557.
[3] It is also a well-settled rule of construction that, in construing a written instrument, the court will, if possible, give effect to all its parts, and its meaning will be determined from a consideration of all its provisions, taken together as a whole. Where it is possible to so construe an instrument as to give reasonable effect to all its provisions, it is the duty of the court to adopt that construction which gives such effect to all parts of the instrument, if it can be done without doing violence to the evident intention of the parties as expressed by the language of the whole instrument. Indiana, etc., Oil Co. v. Grainger, 33 Ind. App. 559-562, 70 N. E. 395;Hornet v. Dumbeck, 39 Ind. App. 482-491, 78 N. E. 691;Warrum v. White, 171 Ind. 574-577, 86 N. E. 959;Irwin v. Kilburn, 104 Ind....
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