Luis v. Ada Lodge # 3, Independent Order of Odd Fellows
| Decision Date | 08 February 1956 |
| Docket Number | No. 8156,8156 |
| Citation | 77 Idaho 392,294 P.2d 1095 |
| Parties | Page 1095 294 P.2d 1095 77 Idaho 392 James LUIS and Evelyn Luis, husband and wife, Plaintiffs-Appellants, v. ADA LODGE #3, INDEPENDENT ORDER OF ODD FELLOWS, a corporation, and James McNeal, William Wymer and Norman Tarter, Trustees, Defendants-Respondents. Supreme Court of Idaho |
| Court | Idaho Supreme Court |
James W. Blaine, Hawley & Marcus, Boise, for appellants.
Fredricks & Roberts, Boise, Donart & Donart, Weiser, for respondents.
Respondents by a written lease dated March 31, 1950, leased to appellants a portion of a building located on Lots 11 and 12, Block 1, Original Townsite of Boise, the particular part being a room on the ground floor 27 feet in width and 90 feet in length, together with the basement under said room, except certain parts, for a term of ten years. The rent reserved was payable at the rate of $305 per month and the total rent consideration for the term was $36,600.
As permitted by the terms of the lease, appellants at their own expense, made extensive and expensive improvements and alterations of the demised premises, and with the permission of respondents sublet a part. The improvements made by appellants consisted in part of redecorating the room installing a ceiling under the balcony, extending the balcony, construction of a partition, new tile on the floor and rewiring.
Appellants and their tenant occupied the space so rented mostly for business purposes. A part was used a living quarters by appellants.
On December 14, 1952, a fire broke out in the leased portion of the building, damaged the room leased and destroyed or partially destroyed appellants' improvements and the personal property therein owned by appellants and their tenant. The building itself was not destroyed, the walls and ceilings and upper stories, foundation and other parts were left intact. The fire did not render the building untenantable.
A clause in the lease provides that the lessee (appellants) shall keep said premises in good repair. This clause is qualified by a second paragraph which reads:
'In case said premises shall be rendered untenantable by fire or other casualty, the Lessor may at its option terminate said lease or repair said building within sixty (60) days, or failing so to do, or upon the destruction of the premises by fire, the term hereby created shall cease and terminate.'
It is the contention of respondents that this clause canceled the lease. Appellants contend otherwise. Respondents refused, after the fire to recognize the tenants' claimed right of occupancy conferred on appellants by the lease. Appellants contend that such action constitutes a constructive, unlawful eviction, and they brought this action against the lessors (respondents) to recover damages for the alleged breach.
The testimony disclosed that immediately subsequent to the fire respondents began repairing the parts of the building damaged, particularly the part leased to appellants, and by January 26, 1954, the appellants could have entered the leased premises and commenced the making of leasehold improvements. Appellants demanded possession of the leased premises and attempted to enter and install improvements necessary to carry on their business and were prevented by respondents from so doing.
By a notice served on and received by appellants on January 26, 1953, appellants were notified by respondents that the lease was canceled and terminated because of the fire; that the premises had been rendered untenantable and that respondents exercised the option to cancel the lease. Subsequent to this time one of the respondent trustees advised appellants that if they wanted to reoccupy the premises they would have to pay $600 (apparently meaning $600 a month) for the first floor. The testimony further disclosed that the leased premises damaged could have been completely repaired in forty-five days; and in less than the sixty days specified in the lease the premises had been repaired and placed in a tenantable condition. Evidence of damage sustained was received. At the conclusion of appellants' evidence the court sustained a motion of nonsuit and dismissed the action. Appeal was taken from the judgment.
The main question presented for determination is whether the fire terminated the tenancy. For reasons hereinafter stated we hold it did not.
By the terms of the paragraph of the lease above quoted, and on the happening of the fire, the lessor is given the option of terminating the lease, or repairing the leased premises, and upon the destruction of the premises by fire the lease is terminated. The lessor repaired the leased premises making certain alterations deemed unimportant here. Neither the leased premises nor the building was destroyed. The part leased to appellants was for a short period of time untenantable.
In an application to the City of Boise for a permit to make the repairs, the cost of such repairs and/or changes, as respondents were making, or desired to make, states the entire cost at $3,500. The tenants' improvements placed on the premises far exceed this sum.
In the present situation the interruption of the tenant's business because of the fire, had appellants been permitted to enter the premises would have been temporary only.
If the damage to the building or other leased property be of such a nature that same may be repaired within a reasonable time, there is no destruction of the subject matter of the contract even though the building be temporarily uninhabitable or untenantable. 35 C.J. 1060, § 227; 51 C.J.S., Landlord and Tenant, § 99, b, p. 671.
The premises are untenantable within the meaning of such a provision as is contained in the lease here considered, if the destruction is so complete that they cannot be used for the purpose for which they were leased and cannot be restored to a fit condition by ordinary repairs made without unreasonable interruption of the tenant's use. 51 C.J.S., Landlord and Tenant, § 99, b, p. 672.
In the present situation respondents exercised the option to and did repair, and only after substantial and necessary repairs had been made, attempted by notice or otherwise to cancel the lease.
Clauses in leases defining the rights of the parties to the lease because of the destruction, partial destruction or damage, of the leased premises by fire or other causes have been before the court for construction in numerous decisions.
In Scharbauer v. Cobean, N.M. 427, 80 P.2d 785, 786, 118 A.L.R. 102, the clause in the lease being considered reads:
"'It is understood that in the event of the destruction of the premises by fire or other casualty to such an extent as to render the same untenantable, this lease shall become void and of no effect."'
The court held that thought the leased premises because of fire were temporarily rendered untenantable, and a continuation of the business therein conducted while the repairs were being made was impracticable, did not cancel the lease.
In Barry v. Herring, 153 Md. 457, 138 A. 266, 267, the lease contained the following clause:
"If the property shall be destroyed or rendered untenantable by fire, the tenancy hereby created shall be thereby terminated, and all liability for rent hereunder shall cease upon payment proportionately to the day of fire or unavoidable accident."
The lessor sought to cancel the lease because a fire had destroyed a part of the leased premises. The court held that the clause did not cancel the lease and said:
'* * * where the building may be restored by ordinary repairs made thereon with no considerable interruption to the tenant's business while the same are being made, the tenancy is not terminated or the lease forfeited.'
The court in its opinion reviewed numerous...
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...of the occupancy. Marcel Hair Goods Corp. v. Nat'l Savings & Trust Co., 410 A.2d 1, 6 (D.C. 1979); Luis v. Ada Lodge # 3, Order of Odd Fellows, 77 Idaho 392, 396, 294 P.2d 1095, 1098 (1956); Kouzoukas v. Chamopoulos, 133 Ill.App.2d 14, 17, 268 N.E.2d 261, 264 (1970); Barry v. Herring, 153 M......
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