Lesser v. Kline

• Court: Connecticut Supreme Court
• Writing for the Court: KEELER, J. (after stating the facts as above).
• Citation: Lesser v. Kline, 101 Conn. 740, 127 A. 279 (Conn. 1925)
• Decision Date: 13 January 1925
• Parties: LESSER v. KLINE.

127 A. 279

101 Conn. 740

LESSER v. KLINE.

Supreme Court of Errors of Connecticut.

January 13, 1925

Appeal from Superior Court, New Haven County; Leonard J. Nickerson Judge.

Action by Joseph Lesser against Abe L. Kline. Judgment for defendant, and plaintiff appeals. No error.

On December 14, 1921, the plaintiff was tenant of the defendant of a certain building in Bridgeport comprising a store on the ground floor and three floors above the same, and a basement beneath, under a written lease for the term of 3 years from August 15, 1915, with a right of renewal for 12 years thereafter made by defendant to the Aimwell Company, and by it assigned to the plaintiff. The basement was accessible only by a stairway leading to it from the store, and the upper floors were accessible from the interior only by a stairway and an elevator. On the above date, and for a long time before, and thereafter until the trial of the action plaintiff conducted on the premises a retail men's clothing business.

On the day last named the premises were damaged by fire, without fault or negligence of the plaintiff or defendant, which fire burned and charred the floors, ceiling, and walls of the ground floor, and burned and disarranged the electric lighting wires, and burned and charred the stairway. The elevator was so damaged it could not be used. As a result of the fire the store upon the ground floor could not be used by the plaintiff for the conduct of business without repair, and the three upper floors were rendered unserviceable and inaccessible to the plaintiff, since the elevator and stairway were unsafe and inaccessible. Within a reasonable time after the fire the defendant employed a competent builder, and made all necessary exterior repairs. Immediately after the fire the plaintiff requested the defendant to make such interior repairs as would make the premises tenantable by the plaintiff and which were required to repair the damages done by the fire, which the defendant refused to do, and has ever since refused to make such interior repairs.

The plaintiff offered no testimony as to the cost of making the interior repairs occasioned by the fire, and no testimony as to the length of time which would have been reasonably required for the making of such interior repairs as were necessary by reason of the damage incurred. The plaintiff has continuously occupied the premises and conducted his retail business thereon since the fire. He has not used the three upper floors of said building since the fire. Between December 14, 1921, and January 20, 1923, the plaintiff expended for interior repairs upon the premises about $1,700. The plaintiff has paid to the defendant since December 14 1921, the rent reserved under the lease, which has been accepted. Each payment was made by the plaintiff under protest.

The lease is in usual form, containing the customary covenant for delivery of the demised premises at the expiration of the tenancy " in as good a condition as said premises are now in, ordinary wear, fire, and other unavoidable casualties excepted." It also contains a special provision " that the lessor shall make all exterior repairs, and replace any plate glass windows that may be broken, keeping up plate glass insurance for that purpose; also that he will keep in force an elevator liability policy of the same amount as the one now operative. The lessee agrees to make all interior repairs needed or proper for said building at its own expense."

In his complaint the plaintiff alleged, and the defendant admitted that plaintiff had carried on a fire sale of merchandise in the premises. It was also alleged that the same was not used for any other purpose, which was denied by defendant and not found proven by the court. As special damage plaintiff alleges the necessity of using extra coal for heating in order to prevent freezing of water and steam pipes. He also alleges a reduced rental value by reason of the fire and the ensuing lack of requested repairs, also loss of business and good will formerly existing, and continuance in the future of such loss. Plaintiff made a motion to rectify the finding, (1) by adding the fact that " the elevator was so badly damaged that the city authorities forbade its use" ; also (2) by adding a finding that " for a period of three months after said fire the plaintiff was unable to use more than one-quarter of the store on said premises for the conduct of its business." This motion was denied by the court, and the denial is made a reason of appeal.

The plaintiff offered testimony to show payment to defendant of insurance arising out of the fire, which was excluded by the court, and plaintiff excepted.

The trial court reached the following conclusions: (1) That the rights of the parties are determined by their written lease. (2) That the defendant was under no obligation under the contract or by operation of law to make repairs upon the interior of the building necessitated by the fire. (3) That payment by the plaintiff of rent under protest did not change the contractual relations of the parties. (4) That judgment should be rendered for defendant.

In addition to error claimed in the refusal of the court to rectify the finding, the plaintiff assigned certain errors arising on the finding, which will be stated in the opinion, which contains further facts.

Philip Pond and Charles Cohen, both of New Haven, for appellant.

William H. Comley, of Bridgeport, for appellee.

KEELER, J. (after stating the facts as above).

The first seven reasons of appeal are all concerned with the fundamental question involved in the construction of the lease. The eighth reason of appeal involves the question as to the admission of testimony as to the existence and adjustment of insurance upon the premises in favor of defendant. The ninth is a general assignment of error " that judgment should have been the other way" obnoxious to the provisions of G. S. 1918, § 5837, requiring specific assignments of error. The tenth reason of appeal relates to corrections of the finding which the trial court refused to make.

It is claimed by the plaintiff that under the lease the defendant was required to make such repairs as were necessary to repair the damage done by the fire, sufficient to put the same in proper condition for use and occupation by the plaintiff for the purposes of his business. At common law the landlord is under no obligation to make repairs upon leased premises. Any obligation in that regard must arise from contract or statutory provisions. Hatch v. Stamper, 42 Conn. 28 29; Gallagher v. Button, 73 Conn. 172, 176, 46 A. 819; Rumberg v. Cutler, 86 Conn. 8, 84 A, 107. The question before us is whether the lease in question created rights in the plaintiff not recognized by our common law. The...