Lirette v. Sharp

• Decision Date: 31 January 1950
• Docket Number: No. 3189,3189
• Citation: 44 So.2d 221
• Parties: LIRETTE v. SHARP et al.
• Court: Court of Appeal of Louisiana — District of US

Page 221

44 So.2d 221

LIRETTE v. SHARP et al.

No. 3189.

Court of Appeal of Louisiana, First Circuit.

Jan. 31, 1950.

A. Dcutsche O'Neal, Houma, for appellants.

Ellender & Wright, Houma, for appellee.

DORE, Judge.

This is a suit under a contract of lease. The plaintiff alleges that on January 6, 1948, under a written contract, he leased to Liberty Motors, a commercial partnership composed of J. W. Sharp, Jr., and Thomas F. Glover, certain premises owned by him and situated in the City of Houma, for a period of fifteen months beginning on January 1, 1948 and continuing to March 31, 1949, at a monthly rental of Two Hundred Twenty-five and no/100 ($225.00) Dollars, payable monthly, for the purpose of conducting an auto sales and repair business, a copy of the written contract of lease being attached and made a part of the petition. He further alleges that the rent on the premises leased has not been paid since December 1, 1948 and the said defendants removed their goods from the leased premises and abandoned said premises without lawful cause during the month of December, 1948, and have failed to surrender the keys of the premises. He seeks payment of rent for the four months from December 1, 1948 to March 31, 1949, at the monthly rate of $225.00, or a total of $900.00, for which amount he prays for judgment, with legal interest from date of judicial demand and for costs.

Defendants, in their answer, admit the execution of the lease; admit that the last four months of the lease period have not been paid; admit that they abandoned the leased premises during the latter part or November or the first days of December, 1948, but deny that their abandonment of the leased premises was without legal cause; and they admit that they have not surrendered any keys of the premises to the plaintiff, because there were no keys to surrender. They deny any indebtedness to plaintiff for any sum of money.

Further answering and assuming the position of plaintiffs in reconvention, they aver that 'before, during, at and after the time of the execution of the lease, * * *, all parties were aware of the fact that the contemplated and later leased premises was not fit to be used for the defendants' business, due to the decayed, rotten and worn out condition of the roof and ceilings--all parties knowing that large leaks occurred and tremendous amounts of water poured through the roof of said building during rains to such an extent that practically the entire premises would be unusable during rain.' They further aver that they, during their tenure of the premises, repeatedly and at divers times notified the plaintiff of the condition of the roof and constantly pleaded with the plaintiff to repair said roof, and he, the plaintiff, would promise to make the necessary repairs, but would fail to do so. Defendants aver that they, in an effort to get along peacefully in their business operations, 'played along' with plaintiff as long as they could possibly do so, and finally abandoned the hope of having plaintiff properly fix the roof, and did, during the latter days of November, 1948, begin to evacuate the building after having remonstrated with plaintiff and advising him that they could not stand the situation any longer.

Defendants claim the sum of $60 as damage done to an automobile by having tar leak upon it through the roof.

In addition to this $60, they claim damages in the sum of not less than Fifteen Hundred ($1500.00) Dollars for 'loss of time, loss of labor, loss of work, loss of jobs, and were considerably annoyed and harassed by the condition of the roof, and by plaintiff's failure to put same in good condition as required by his obligation to defendants as lessor.'

In their prayer, defendants pray for a dismissal of plaintiff's demand, for a cancellation of the lease as of the end of November, 1948, because of the defective condition of the roof, and for a judgment in their favor and against plaintiff for the sum of $1560, with legal interest from judicial demand until paid, and for all costs.

On these issues the case was duly tried, resulting in a judgment, with written reasons assigned, in favor of the plaintiff and against the defendants for the sum of $900, with legal interest from judicial demand; judgment in reconvention in favor of defendants and against plaintiff in the sum of $60.00, with interest from judicial demand; the costs were equally divided between plaintiffs and defendants. Defendants have appealed.

Revised Civil Code Article 2692, provides that, 'The lessor is bound from the very nature of the contract, and without any clause to that effect: 1. * * *. 2. To maintain the thing in a condition such as to serve for the use for which it is hired. 3. * * *.'

The following facts seem not to be disputed. The leased premises in the contract of lease is declared to be 'That portion of that certain commercial building located at the corner of Lafayette and School Streets, (situated in the City of Houma), and bearing the municipal No. 301 Lafayette, on the first floor and consisting of the Filling or Service Station and Repair Department, as formerly occupied and used by said lessor.' According to 'Exhibit P-9,' and as found by the trial judge, the structure leased measures 70 feet by 130 feet, a total area of 9100 square feet, less a portion reserved by plaintiff for a grocery store involving an area of something less than 2000 square feet, thus making a net area of more than 7000 square feet. Defendants admit that these premises were 'hired' for the purpose of conducting an automobile repair, sales and filling station business, and according to their testimony, the premises were used for such purposes. It was this 'use' for which the lessor, plaintiff, had to maintain the roof of the structure in a satisfactory condition. It should be mentioned at this time that the Lirette Grocery Store, operated by plaintiff's son, occupied part of the same structure and was covered by the same roof.

The record further discloses that the defendants occupied these premises, on a month to month basis at a monthly rental of $225 per month, in the early part of October, 1947, and were so occupying the premises when, on January 6, 1948, they executed the written lease for a term of fifteen months at the monthly rental of $225. The defendants abandoned the premises on or about December 14, 1948, without paying or offering to pay the December rent or any portion thereof, and without notifying the plaintiff of their intention in so doing.

The finding of fact by the trial judge is as follows: 'The testimony shows that there were leaks from time to time during heavy rains, that Lirette was given notice of such leaks, that he made efforts to repair the same, but that the leaks were never so completely repaired as to completely prevent their recurrence during heavy rains. However, the testimony does not show (not even the testimony of Liberty's witnesses) that 'tremendous amounts of water poured through the roof of said building during rains to such an extent that practically the entire premises would be unusable during rain'. On the contrary, our appraisal of the testimony is that the leaks consisted more of drips under which buckets were hung, and which evidently served the purpose until repairs were made. If the leaks had been so extensive that 'Tremendous amounts of water poured through the roof', the use of some two or three buckets would have been an absurd, vain and useless gesture. The fact that buckets were used indicates to us that the leakage could not have been nearly so extensive as Liberty alleges. Consequently, it is our belief that while there were some leaks which afforded Liberty some inconvenience and even resulted in some damages, they were hardly sufficient to impair the use of most of the premises and to justify the abandonment thereof.'

We do not deem it necessary to state the testimony of each witness. We find it...