Lynder v. S.S. Kresge Co.

• Decision Date: 08 January 1951
• Docket Number: No. 14,14
• Citation: 45 N.W.2d 319,28 A.L.R.2d 440,329 Mich. 359
• Parties: , 28 A.L.R.2d 440 LYNDER et al. v. S. S. KRESGE CO.
• Court: Michigan Supreme Court

Page 319

45 N.W.2d 319

329 Mich. 359, 28 A.L.R.2d 440

LYNDER et al. v. S. S. KRESGE CO.

No. 14.

Supreme Court of Michigan.

Jan. 8, 1951.

Shapero & Shapero, Detroit, for plaintiffs and appellants.

Franklin D. Dougherty, Detroit, for defendant and appellee.

Before the Entire Bench, except BUTZEL, J.

SHARPE, Justice.

On February 26, 1947, defendant entered into a written lease with William H. Neu effective April 1, 1947, for a term of 5 years. Among other matters, the lease provided: 'Said premises shall be prepared for occupancy by the party of the first part by removing certain old partitions and installing certain new ones as per the approval of party of the second part, filling in of holes and stair well with good solid flooring, cleaning the floor, removing or changing rear stairway to the second floor, providing of separate toilet facilities for men and women, and placing plumbing, radiation, and wiring in good repair * * * to be occupied for storage, receiving and shipping purposes.'

On June 11, 1947, defendant wrote Mr. Neu that it was essential to remove the rear stairway as soon as possible and on September 19, 1947, defendant again wrote Mr. Neu that the rear stairway must be removed and the opening closed off for the reason that under existing conditions it was impossible to get burglary insurance. In reply to these notices Mr. Neu wrote defendant that he could not afford the expense of removing the stairway. On May 7, 1948, plaintiffs purchased the property on a land contract. At the time of the purchase, Mr. Neu turned over to plaintiffs the defendant's lease. Prior to the purchase of the property by plaintiffs, they were advised that the rear stairway had not been removed as required by the lease and that if the objectionable conditions were not immediately remedied, defendant would terminate the lease.

In July 1948, at defendant's request, plaintiffs installed an additional loading dock. In December 1948, defendant sought permission from plaintiffs to sublet the premises to the Major Toy Company who was a tenant in another portion of the building. This request was refused.

On February 25, 1949, defendant wrote plaintiffs a letter a copy of which reads as follows: 'Enclosed are the keys to the premises located in the puilding known as 2600 22nd Street, Detroit, Michigan, which premises were leased February 26, 1947, to the S. S. Kresge Company. Inasmuch as the lease has not been complied with, we are hereby terminating the lease and surrendering the premises to you.'

On February 28, 1949, plaintiffs, through their attorney, made reply to the above letter as follows:

'Your letter dated February 25, 1949, addressed to Max Lynder et al has been referred to me for attention. As I advised you over the telephone, we do not know what you are referring to when you say that the lease has not been complied with, and we would appreciate advice from you in what respect you claim that Mr. Lynder has not complied with lease dated February 26, 1947, to the S. S. Kresge Company.

'Please be further advised that we decline to accept any surrender of the premises or any termination of the lease. If the landlords have failed to comply with any term of the lease, of which you have a right to complain, the landlords stand ready to fulfill their obligations when we are advised as to what you claim such default consists of and the matter determined as to whether or not such claims on your part are well founded. We are therefore returning to you herewith the keys and hereby notify you that we will look to you to continue payment of rental under the terms of the lease and shall expect performance of such terms by you in accordance with the provisions of such lease.'

After receipt of the above letter, defendant, through its agent A. E. Laufler, replied as follows:

'Harold M. Shapero,

re 2600 22nd Street, Detroit, Michigan.

'Dear Sir:

'As your clients were previously advised, we consider our lease of the premises located in the building known as 2600 - 22nd St., Detroit, Michigan, at an end, and notify you as representative of the owners that possession is surrendered. The keys are herewith returned.

'Our action is occasioned by the continued noncompliance with the conditions of the following clause in the lease, which has been brought to the attention of the owners on several occasions:

"Said premises shall be prepared for occupancy by the party of the first part by removing certain old partitions and installing certain new ones as per the approval of the party of the second part, filling in of holes and stair well with good solid flooring, cleaning the floor, removing or changing rear stairway to the second floor, providing of separate toilet facilities for men and women, and placing plumbing, radiation, and wiring in good repair."

Defendant continued to pay rental for the premises including the February 1949 rent and vacated the premises February 27, 1949. During the month of March 1949, plaintiffs began an action against defendant in the common pleas court of Detroit for the sum of $250 representing the rent claimed to be due for the month of March 1949. Plaintiffs had judgment and upon appeal the cause was tried in the circuit court of Wayne County without benefit of a jury. On May 26, 1949, the trial court entered judgment in favor of defendant.

In an opinion filed in this cause, the trial court stated:

'It appears from the testimony here that the matter of the stairway was of importance to the defendant, which was using the space for warehouse purposes, having on hand sometimes as much as $100,000 worth of property. The stairway gave the tenant on the second floor access to the premises. Prior to the entry of this tenant on the second floor there was no real complaint concerning that. * * *

'I must conclude that the plaintiffs in this case had notice that the defendant was insisting upon his right to have the stairway removed. It seems fair to say, from this testimony, that they could not operate as a warehouse and have an open stairway from the second floor into their premises, nor could they obtain burglary insurance or necessary protection under such circumstances. The putting off of the request by the defendant was only a matter of grace. If plaintiffs in this case had refused at any time to countenance the claim of the defendant pertaining to the stairway, and defendant had continued to pay the rent thereafter, in my opinion, that would have constituted a waiver and estoppel. The parties here were operating on a friendly basis, they were seeking to get along under the lease.

'It appears that both by statutory requirement and by ordinance, that the stairway could either have been sealed off, or a separate entrance made to the outside.

'It appears from the proof here that Mr. Neu had assured Mr. Laufer that he would take care of the stairway situation as soon as he could; at least that situation was open continuously in dispute between the parties. At no time did not plaintiffs ever deny their responsibility under the lease. They relied on Mr. Neu's statement that a new contract had been made, and that the defendant had waived the provision concerning the stairway by the acceptance of additional space, at the time they moved in. All of the conditions in the lease were preparatory to the entry of the defendant into the premises. But I find no such innovation. The testimony equally discloses that Mr. Lynder was reminded again of the stairway situation in September of 1948.

'I do not find that plaintiffs have established any waiver of (or) estoppel under the circumstances here presented, and I find that the lease is specific in its conditions concerning the principal complaint relative to the stairway. There was no ambiguity in the construction of the provision; there was no new agreement made between the parties here, and so there was no consideration for it.'

Plaintiffs appeal and urge that if they breached the lease, such breach would not constitute a defense to their action for rent, as the change in the stairway was to be made before the tenant took possession and defendant, having taken possession without such change being made, cannot claim constructive eviction by reason of the failure to make the change in the stairway.

Plaintiffs rely on 28 A.L.R. 1454-1455 where the general rule is stated: 'An agreement to repair, even before the commencement of the term, is not to be construed to be mutual with the covenant to pay rent. * * * Where the landlord covenants to make repairs or improvements to the leased premises prior to the commencement of the term, and fails to do so, the tenant may refuse to accept...