Machen v. Hooper
| Decision Date | 16 January 1891 |
| Citation | 21 A. 67,73 Md. 342 |
| Parties | MACHEN ET AL. v. HOOPER ET AL. [1] |
| Court | Maryland Court of Appeals |
Appeal from Baltimore city court.
Argued before MILLER, ROBINSON, IRVING, BRYAN, MCSHERRY, and FOWLER JJ.
Bernard Carter and A. W. Machen, for appellants.
Thomas M. Lanahan and Charles Marshall, for appellees.
The questions in this case were presented to the court below with a considerable variety of form. They all depend, however upon the proper construction of the agreements contained in a certain lease, which appears at large in the record. On the 6th day of June, 1879, the plaintiffs below (now appellants) leased to the defendants a lot of ground in the city of Baltimore, "together with the building or warehouse thereon;" said lot and building being known as "No. 37 South Gay Street." The lease was for the term of five years, accounting from the 15th day of May, 1880. Shortly after the execution of the lease the lessee obtained an assignment from a tenant in possession and entered upon the premises. On the 30th day of May, 1884, the building suddenly fell down, and became a mass of ruins. It was contended at the trial below, that, by force of the agreement contained in the lease, the defendants were responsible for the damage caused by the disaster, while the contrary was maintained by the defendants. Before we examine the terms of the lease we will state some of the evidence adduced by the respective parties. The evidence offered on the part of the plaintiffs tended to show that the building was five stories high; that it was erected in 1854, by a skillful and experienced builder for the firm of Charles D. Deford & Co.; that it was constructed of the best materials, and was a structure of the strongest kind; that the firm were largely engaged in manufacturing tobacco; and that they stored a large quantity of tobacco in it, and required a very strongly-built house for their business; and that its fall was caused by storing in it a large quantity of cotton goods of excessive weight. The evidence offered in behalf of the defendants tended to show that the defendants were manufacturers of cotton, duck cotton, twine, and cotton rope; that they were well known to one of the plaintiffs; that the warehouse was badly constructed; that it was built of inferior materials, and was weak; that the defects in the building could not have been discovered without a thorough examination by an architect or other expert conversant with such matters; that if the walls had been of proper thickness, and the materials had been sound and good and of proper strength, 4,603,500 pounds might have been stored in it with safety; that, on the day when it fell, the goods stored in it and in an adjoining warehouse weighed 1,000,865 pounds including what was in the cellars; and that they were properly stored; and that the cause of the fall of the building was its weakness. It will be seen that there was a very great conflict in the evidence. Of course the court could not determine the truth of the testimony, but could only give the jury instructions on the law adapted to such conclusions as they might draw in respect to the credibility of the evidence. They were instructed, according to the second prayer of the plaintiffs, that if the fall of the building was attributed to alterations made in the building by the defendants in connection with the use thereafter made of it by them, the plaintiffs were entitled to recover; and, according to their fourth prayer, that if the fall was owing to the excessive quantity of goods stored in the building by the defendants, or to the manner in which they were stored, the plaintiffs were entitled to recover; and, in their sixth prayer, that the burden of proof was upon the defendants to show that the building fell in consequence of ordinary wear and tear; and that, unless they did show that the fall of the building was so caused, the verdict should be for the plaintiffs. The jury were also instructed on the prayer of the defendants that if they used the building as persons of ordinary care and prudence would have done, looking to its character, size, apparent construction, and strength, and that it fell down in consequence of some defect in its structure, or on account of a want of proper thickness of the wall, or on account of the ordinary decay of the materials, and that all these matters were unknown to the defendants, and could not have been discovered by reasonable and ordinary diligence, the verdict should be for the defendants. Other instructions were prayed by the plaintiffs, which we shall consider in another part of this opinion. But we shall first examine the lease, and see how far these instructions were justified by its provisions.
The lease is very long, and is drawn with much minuteness and particularity. The agreements contained in it are called "covenants," but as the instrument is not under seal this description is not technically accurate. It was probably adopted under the supposition that it was to be sealed by the contracting parties. This phraseology, however will not in any way affect the construction of the paper. After stating the lease of the lot with the building or warehouse thereon, many so-called "covenants" follow. There is a provision for a suspension of the rent in case of destruction by fire, or by the act of God, or by anything done or occurring without the fault of the lessees, and for a rebuilding at the expense of the lessors under certain circumstances, not now necessary to be particularly noticed. There was an agreement that the lessees might, at their own expense, make alterations in the building which should not affect its safety or strength and durability. The lessees covenanted in these words: "That they would be liable and answerable for any and all damage or injury, other than loss or damage by fire, not suffered by breach of any covenant herein contained on the part of the parties of third part [the lessees] to be performed, which, during their occupation thereof, shall occur to the said building, or any part thereof, by or by reason of any act or thing done or occurring within said premises or building, and also for any act or thing done or occurring outside thereof, by the said parties of the third part, their servants, employes, or tenants, or otherwise by their authority or consent, but shall not be responsible for damage by fire unless not covered or protected by insurance, by failure on their part to comply with some of the stipulations or covenants of these presents, nor by act of God or act or acts of third persons done or committed outside of the said demised premises without the participation, authority, or consent of the lessees." And, in a subsequent part of the lease, they covenanted that at the end of the term they would quietly surrender to the lessors "the said demised premises and building in the same good order and condition they now are in, ordinary wear and tear, loss by fire, (other than as hereinabove specially provided against,) act of God, and damage caused by external accident or acts of third parties, as hereinbefore particularly mentioned, together with the addition and improvements by the said parties of the third part thereto or therein added or made, in good order, as aforesaid, unless such addition shall have been required by the lessors or their assigns to be removed under the succeeding covenant." And the lessees further covenanted that, if required by the lessors, they would restore the building to the same state and condition in which it then was, ordinary wear and tear excepted. A view of the circumstances connected with the making of this lease will materially assist us in ascertaining...
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