Lincoln Square Corp. v. Motor City Paper Tube Co.

• Decision Date: 07 June 1954
• Docket Number: No. 52,52
• Citation: 46 A.L.R.2d 832,339 Mich. 602,64 N.W.2d 577
• Parties: , 46 A.L.R.2d 832 LINCOLN SQUARE CORP. v. MOTOR CITY PAPER TUBE CO.
• Court: Michigan Supreme Court

Page 577

64 N.W.2d 577

339 Mich. 602, 46 A.L.R.2d 832

LINCOLN SQUARE CORP. v. MOTOR CITY PAPER TUBE CO.

No. 52.

Supreme Court of Michigan.

June 7, 1954.

Friedman, Meyers & Keys, Donald E. Barris and Herbert Sott, Detroit, of counsel, for plaintiff-appellant.

Goetz & Goetz, Detroit, for defendant-appellee.

Before the Entire Bench.

DETHMERS, Justice.

Plaintiff owned and leased a multiple story building to defendant for its occupancy and use as a manufacturer of paper tubes and products. For that purpose defendant had on the premises a quantity of machinery, huge rolls of paper and other personal property. Fire rendered the building untenantable and converted much of defendant's personal property, other than machinery, into debris. The lease provided that, in the event of such destruction of the premises by fire, plaintiff would repair and restore same to tenantable condition with reasonable dispatch, the rent to abate until thus restored. After the fire plaintiff took the position that the rent did not abate and that plaintiff was not required to commence repairing until defendant made the latter possible by removal of its machinery and the debris, 95% of which consisted of defendant's burned personal property and 5% of burned wood of the building. Twelve days after the fire the city department of building and safety engineering sent both parties a notice ordering removal of all equipment, machines and material. Sixteen days after the fire plaintiff sent defendant a written request to remove the contents of the building so that repairs could be made. Two days later defendant made written reply declaring the lease terminated for failure of plaintiff to commence repairs and demanding that the building be put in safe condition to enable defendant to remove its machinery. Six days thereafter plaintiff again wrote defendant advising that it considered the lease still in effect and demanding defendant's removal of the contents to permit such repairs. After another two days plaintiff again wrote defendant advising that unless the latter removed the contents within four days plaintiff would remove and store the same at defendant's expense. Defendant replied three days later that it would remove its machinery as soon as plaintiff made the premises safe for that purpose and cautioned that plaintiff was not authorized to handle defendant's machinery or incur any expenditure on defendant's behalf. Twenty-two days after the last mentioned letter, being seven weeks and two days after the fire, defendant commenced, and within the next ten days completed, removal of its machinery and then mailed keys to the building to plaintiff. Thereafter plaintiff removed the debris and proceeded to make the necessary repairs to the building, which were completed in approximately six months. After completion, defendant declined to reoccupy the premises or pay rent under the lease and a year or more elapsed before plaintiff was able to obtain a tenant.

Plaintiff sued to recover the net cost to it for removal of the debris, consisting of defendant's burned personal property, in the amount of $5,303.88, and also for rent at the lease-prescribed rate of $600 per month, itemized as follows: $900 due until date defendant had completed removal of its machinery; $3,300 for a five and one half month period extending from the last mentioned date until the alleged date of completion of repairs to the premises; and $7,800 for a claimed 13 month period after completion of the repairs, during which plaintiff was unable to obtain a tenant. The total of plaintiff's claim is, therefore, $17,303.88. From a judgment of no cause for action, entered after trial by the judge without a jury, plaintiff appeals.

Was it defendant's duty to remove its debris? Plaintiff says it was, finding support for its position in Boardman v. Howard, 90 Minn. 273, 96 N.W. 84, 64 L.R.A. 648, and Sumna Realty Co. v. Capital Chair Co., 153 A. 701, 9 N.J.Misc. 337. Defendant says that the duty rested on plaintiff, citing tow New York decisions, Fleischman v. Toplitz, 134 N.Y. 349, 31 N.E. 1089, and Packard Motor Car Co. v. American Balsa Wood Corp., 252 N.Y. 174, 169 N.E. 129. Although plaintiff theorizes that the former New York case supports its position and that the latter is distinguishable on the facts and applicable New York statute, we think its theory in that regard far-fetched and consider defendant's reliance thereon well founded. The question is a novel one in Michigan. Reference is made to Barbour v. Waterston, 276 Mich. 304, 267 N.W. 845, but it is not decisive of the question here. There is no pertinent Michigan statute. Applicable provisions of the lease, if any, must be given effect. Plaintiff stresses the lease's paragraphs 15, 18 and 19, which provide, respectively, that defendant shall (1) keep the premises free from rubbish, (2) comply with the orders of municipal authorities affecting the cleanliness, use and safety of the premises, and (3) keep the premises in as good repair and, at the expiration of the lease, deliver up the same in like condition as when taken, reasonable use and wear and damage by the elements excepted. A reading of the entire lease, and these three paragraphs in particular, makes it manifest that they were intended to apply to defendant's occupancy of a tenantable building and not to a situation in which a fire, which converted defendant's personal property into debris, rendered the premises untenantable. They have no application to the question at issue. Nor are we impressed by plaintiff's argument that defendant's removal of machinery and personal belongings after a fire which occurred five years earlier worked an estoppel against defendant's right to deny responsibility for removal of debris in the instant case. The lease failed to specify which party should remove the debris. When the provisions of a lease leave questions in doubt, they must be construed against the landlord. 51 C.J.S. Landlord and Tenant, § 232. The lease did specifically require plaintiff to repair the premises and restore it to a tenantable condition. Necessary and incidental to that duty was the removal of debris. That was part of the burden plaintiff assumed in agreeing to repair in case of fire. 1 Rasch's New York Law of Landlord and Tenant and Summary Proceedings (1950 ed.), § 787, Fleischman, supra, and Packard, supra. Consequently, it must be held that plaintiff is not entitled to recover the $5,303.88 expended for removal of debris.

Is plaintiff entitled to recover the $3,300 rental item claimed for the alleged five and one half month period during which the premises were being repaired? Paragraph 12 of the lease provides that rent shall abate during such period. Plaintiff relies, however, on that paragraph's subsequent proviso that there shall be no such abatement of rental, if the fire shall result from the negligence of defendant. The trial court found as a fact that the fire occurred without fault of defendant. The evidence does not clearly preponderate the other way. Plaintiff contends, however, that defendant failed to show its freedom from negligence and that the burden of proof in that regard rested on defendant, citing Chausmer v. Arons, 146 A. 674, 7 N.J. Misc. 612, and Colonial Land Co. v. Asmus, 80 N.J.L. 637, 77 A. 1022. Involved in those cases was a New Jersey statute which provides that whenever a leased building shall be injured by fire without fault of the lessee, the landlord shall speedily repair, or in default thereof, the rent shall cease until the...