Kirby v. Davis

• Decision Date: 11 October 1923
• Docket Number: 7 Div. 419.
• Parties: KIRBY v. DAVIS.
• Court: Alabama Supreme Court

97 So. 655

210 Ala. 192

KIRBY v. DAVIS.

7 Div. 419.

Supreme Court of Alabama

October 11, 1923

Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.

Action for breach of a rental contract by Mrs. A. C. Davis against A. C. Kirby. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Acts 1911 p. 450, § 6. Reversed and remanded.

A. E Hawkins, of Ft. Payne, for appellant.

C. A Wolfes, of Ft. Payne, for appellee.

GARDNER J.

Suit by appellee against the appellant to recover damages for breach of a covenant to repair contained in a lease contract. There was judgment for the plaintiff, from which the defendant has prosecuted this appeal.

The plaintiff was the owner of certain business property in Ft Payne, Ala., which she leased to one R. B. Thomas for a term of five years. The contract was in writing, and contained various stipulations as to certain repairs and improvements and credits therefor not necessary here to be enumerated. This contract was duly executed by the parties in February, 1917, and Thomas, the lessee, went into possession of the property and so remained until June, 1918, when he surrendered possession to the defendant in this suit, who occupied the premises under this lease and paid the rent therefor. This lease contract was assumed by this defendant pursuant to the written agreement signed by him and the plaintiff, possession enjoyed, and rents paid therefor. It is very clear that the defendant was bound by the terms and stipulations of the original lease. Chattanooga Brewing Co. v. Smith, 3 Ala. App. 551, 58 So. 63, and authorities there cited. This contract provided that the lessee was "to keep the premises in good repair *** and to deliver up said premises at the end of the term of this lease in good order and condition, reasonable wear, accidental fire, and unavoidable casualties excepted." The front of this property was inclosed with plate glass windows, and evidence for the plaintiff tended to show that this glass was broken several months after the defendant had gone into possession of the property. The evidence for the defendant tended to show that this glass, or at least a large portion thereof, was broken as the result of an accident while some boys were playing baseball in the streets of Ft. Payne; that these boys had no connection with his business, and that he had no knowledge or notice of the accident until his attention was called thereto; and he insists that he is not liable for this repair for an accident over which he had no control and as to which he was in no way connected.

It is well established under the authorities that the covenant to repair, standing alone, would fix liability upon the defendant in this case, though the damages resulted from an unavoidable accident or the wrongful act of a stranger. This principle was given recognition by this court in Meriwether v. Lowndes County, 89 Ala. 362, 7 So. 198, and fully sustained by the authorities. Williston on Contracts, vol. 3, § 1967. A different rule obtains as to the covenant to return the property in good order and condition at the expiration of the lease. Such a covenant is construed as not a covenant to repair or rebuild, but only the expression of the implied obligation or duty resting upon the tenant. The latter covenant, standing alone, would not have imposed liability upon the defendant upon his theory of the case. The author in Williston on Contracts, supra, doubts that this distinction between such covenants rests upon sound ground, but nevertheless the distinction is well recognized by the authorities generally, and by this court in Warren v. Wagner, 75 Ala. 188, 51 Am. Rep. 446.

The question of importance presented upon this appeal is therefore whether or not the covenant to repair is so qualified by subsequent language as to relieve the defendant from liability under the circumstances...