Kates v. Hotel Brooks Corp.

• Decision Date: 03 November 1954
• Docket Number: No. 1107,1107
• Citation: 20 A.L.R.2d 1331,118 Vt. 324,109 A.2d 265
• Court: Vermont Supreme Court
• Parties: Sumner R. KATES et al., d/b/a Sheldon Properties, v. HOTEL BROOKS CORPORATION.

Page 265

109 A.2d 265

118 Vt. 324

Sumner R. KATES et al., d/b/a Sheldon Properties, v. HOTEL BROOKS CORPORATION.

No. 1107.

Supreme Court of Vermont.

Nov. 3, 1954.

Osmer C. Fitts, Brattleboro, for plaintiff.

F. Elliott Barber, Jr., Brattleboro, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS, and CHASE, JJ.

JEFFORDS, Justice.

This is an action of ejectment to recover possession of certain permises for a claimed breach of a covenant in a lease to keep the premises in good and proper repair at the expense of the defendant. There was a trial by jury with a resulting verdict and judgment for the defendant. The case is here on exceptions of the plaintiffs.

The material provisions in the lease are as follows: 'The Lessee is to keep in good and proper repair at its expense, all of the real and personal property hereby leased, including the up-keep and maintenance of fixtures, furnishings and personal property, all necessary replacements and additions thereto being made at the expense of the Lessee, with the exception that the maintenance of roofs and fire escapes and the correction of structural defects is the responsibility of the Lessor, at its expense.' Also the following: 'and upon the condition that all the real and personal property hereby demised shall be kept and maintained during said term of occupancy in as good condition as the same now are, reasonable wear excepted, said Lessee having inspected said real and personal property and knowing the present condition thereof.'

It was also provided that upon failure of the lessee, its successors and assigns to perform any of the provisions of the lease for a period of 90 days it should be lawful for the lessor, its successors and assigns to re-enter upon and repossess the premises without notice.

The lease was executed October 1, 1947. The plaintiffs acquired the leased property by a conveyance dated June 11, 1951.

The first claim of error relied upon by the plaintiffs relates to the failure of the trial court to charge a claimed request which is set forth in their brief as follows: 'The covenant to keep the premises in good and proper repair, reasonable wear excepted, is continuing in nature and imposes an affirmative duty upon the lessee to put the premises in repair if necessary.' The plaintiffs then refer us to ten requests by number as showing that they excepted to the failure to so charge. None of these requests contain the same or similar language as that of the claimed request. Most of them are rather lengthy. If the plaintiffs relied on these requests, singly or collectively, as setting forth the claimed request, even in substance, it was their duty to so inform the court and give their reasons supporting their position. This as far as the record shows they did not do. By saying this we are not to be understood as approving of this procedure if it had been adopted. Each request to charge should be so worded as to clearly show what it is intended that the court should charge. Under the circumstances there was no error in failing to charge the claimed request.

However, under our law it seems clear that if the claimed request had been made there would have been no error in the failure of the trial court to so charge. In Foss v. Stanton, 76 Vt. 365, at page 368, 57 A. 942, it is stated, 'The covenant was to keep the premises in good repair, not to put and leave them in good repair.' See also Drouin v. Wilson, 80 Vt. 335, 67 A. 825.

The plaintiffs rely on only one case from this jurisdiction in support of their claim that it was the duty of the defendant under the covenant in question not only to keep the premises in good repair but also to put them in such repair. They refer us to the language in Sturges v. Knapp, 31 Vt. 1, at page 61. In that case the wording of the covenant differs from the one here. The construction placed on it was based on the subject matter of the lease (running a railroad) and certain stipulations in the lease.

The second and last claim of error which is briefed relates to the time when the duties and obligations of the defendant commenced under the lease. The plaintiffs claim that the time of commencement should be October 1, 1947, the date of the execution of the lease and not June 11, 1951, the date of the acquiring of the property by the plaintiffs. The court charged that the latter date controlled. This question is...