Levy v. Equitable Life Assur. Soc.

• Decision Date: 05 May 1908
• Docket Number: 1,749.
• Citation: 161 F. 283
• Parties: LEVY et al. v. EQUITABLE LIFE ASSUR. SOCIETY.
• Court: U.S. Court of Appeals — Sixth Circuit

161 F. 283

LEVY et al. v. EQUITABLE LIFE ASSUR. SOCIETY.

No. 1,749.

United States Court of Appeals, Sixth Circuit.

May 5, 1908

L Lehman, for plaintiff in error.

D Goldsmith and H. Craft, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This is a suit which grew out of the partial destruction by fire of what was known as the Equitable Building, in Memphis. Beginning August 1, 1903, the plaintiffs leased a storeroom in one corner of the building, on the ground floor, for use as a saloon and cafe; first, for three years, and after that for five years more. On February 21, 1906, the building was partially destroyed by fire.

It was a large office building, estimated to be worth $79,000, and the adjusters appraised the damage at $43,000. The building had six stories, and the principal damage was to the upper stories. The storeroom occupied by the plaintiffs was but slightly damaged; the principal injury being from water. The plaintiffs did not vacate the storeroom occupied by them in consequence of the fire, but continued to do business, and on March 12, 1906, the agent of the defendant served notice upon them that he considered the lease canceled by reason of the damage to the building, and expected them at once to surrender possession of the premises. The plaintiffs refused to do this, and have been in possession ever since. Instead of surrendering, they brought the present suit to recover $25,000 damages for breach of the two leases under which they claim to hold possession of the saloon. A part of the damages alleged rests in contract and a part in tort. Thus the lessor was to furnish water, heat, and light, but after the fire the water, gas, and electricity were shut off, it is claimed, in violation of the contract. After the fire, a fence or barricade was constructed around the saloon, to some extent hindering entrance. A shed was built over the sidewalk, and a chute, or two chutes, for brick and debris, were constructed from the second story to the street in front of the entrance to the saloon. All these acts were charged by the plaintiffs to have been wanton and unnecessarily harmful to their business. The case was tried before a jury, and there was a verdict for the defendant. The attempt is to reverse this.

The allegations of the declaration concerning the contents and provisions of the two lease contracts made and entered into between the Equitable Society and the plaintiffs were admitted by the latter in its plea to be correct. The charge of the court was based upon the statement of the declaration referred to, which is as follows:

'Both of said leases provide that if during the term thereof the building or premises wherein said demised premises are contained shall be destroyed by fire, or the elements, or be so badly injured that they cannot be repaired within 60 days from the happening of such injury, then said lessees shall immediately surrender said premises and all interest therein to the defendant. And both of said leases further provide that in case of destruction or partial destruction of said building, as aforesaid, the defendant, as lessor, may reenter and repossess said premises; but if said premises, having been injured, as aforesaid, shall be repairable within 60 days from the happening of such injury, then the rent shall not run or accrue after such injury, or while the process of repairing in going on, and defendant, as lessor, shall repair the premises with all reasonable speed, and the rent shall re-commence immediately after such repairs shall be completed; and if said premises shall be so slightly injured by fire, or the elements, as not to be rendered unfit for occupancy, then said lessor agrees that the same shall be repaired with reasonable promptitude, and in that case the rent accrued or accruing shall not

...