Marshall v. Rugg

• Decision Date: 30 June 1896
• Parties: MARSHALL v. RUGG
• Court: Wyoming Supreme Court

45 P. 486

6 Wyo. 270

MARSHALL v. RUGG

Supreme Court of Wyoming

June 30, 1896

6 Wyo 270 at 287.

Original Opinion of April 16, 1896, Reported at: 6 Wyo. 270.

Frank H. Clark, for plaintiff in error.

(On rehearing.) There was absolutely no liability against the defendant in the court below involved in the allegations of fact set up in the first cause of action. That cause of action is the alleged breach of one expressed covenant of the lease, and plaintiff did not rely upon any other covenant. It is a duty in pleading to plead, in the language of the lease or its substance, the particular conditions by the breach of which the damage is claimed. (R. S., Sec. 2447; Whittaker's Ann. Code of O., Sec. 5060 and note "contracts;" Boone on Code Pl., Sec. 26 and citations; Bliss on Code Pl., Sec. 245a.) Implied covenants are controlled and restrained within the limits of express covenants. (2 Pars. on Cont., 7th Ed., 646.) Express covenants are to be more strictly construed than implied. (Gear L. & T., 82.) The words "Expiration of the term" relate to the period fixed for its termination (Gear L. & T., Secs. 23, 28.) Expiration of the lease means the end of the period during which it was to operate by the original intention of the parties. In construing a covenant the tenant's liability must not be extended beyond the reasonable meaning of the terms employed. (4 Wait's Ac. & Def., 242 and citations. Reed v. Snowhill, 51 N.J.L 162.) A covenant to lease in good repair can not be broken until the end of the term. (4 Wait's Ac. & Def., 242; Payne v. James, 7 So. 457.) The contract of surrender absolutely abrogated and canceled the contract of lease. It was the substitution of a new contract in place of the old.

W. R Stoll, for defendant in error.

(On rehearing.) A lease expires not merely by lapse of time but also by a surrender of the same. (Wood's L. & T., Chs 42, 43; 12 Ency. L., 658-759; Taylor L. & T., Sec. 507.) Nothing discharges the covenants of a lease but performance or release; and in both instances the discharge must be pleaded. (Thomas v. Cox, 6 Mo. 506; Kemble Coal & I. Co. v. Scott, 90 Pa. 332.)

CONAWAY, JUSTICE. GROESBECK, C. J., and POTTER, J., concur.

OPINION ON REHEARING.

CONAWAY, JUSTICE.

It will be remembered that by the terms of the lease upon which this action was brought the lessees agreed to yield possession on the first day of May, 1894.

Possession was actually yielded to defendant in error, the lessor by subsequent contract specifying July 1, 1893, as the date when he should resume possession, and he entered into possession on July 2, 1893, under this contract. The lease also contains the following provision:

"Said lessees further agree to turn over to said lessor all of said property at the expiration of this lease in as good order and condition as when entered into by them." It is contended that the phrase "expiration of this lease" means the expiration of the term specified in the lease occurring on May 1, 1894; and that the expiration of the lease occurring at an earlier date by subsequent contract does not come within the meaning of the words "at the expiration of this lease," as the same appear in the lease. It would seem that the words "expiration of this lease" are too plain to admit of construction, and that it is hardly within the province of judicial construction, to say that the words mean on the first day of May, 1894; and that such construction would be, in effect, to interpolate a clause in the covenant to return the property in as good condition as when leased, making it read as follows: "Said lessees further agree to turn over to said lessor all of said property at the expiration of this lease in as good order and condition as when entered into by them if such expiration of the lease do not occur until the first day of May, 1894."

Plaintiff in error cites the case of Reed v. Snowhill, 51 N.J.L. 162, 16 A. 679, and 49 N.J.L. 292, as sustaining her contention on this point. It is somewhat remarkable that this is the only case really analogous to the case at bar which has been unearthed by the diligent research of counsel on both sides. This circumstance, as well as the eminence of the court rendering the decision, entitles the case to careful consideration at the expense of some time and space, especially as the case is strongly urged by counsel for plaintiff in error as conclusive in her favor upon the point under consideration.

The case of Reed v. Snowhill was an action upon a lease of certain property for a year ending October 1, 1884. "The lease contained a covenant that the tenant, on the expiration of the said lease, would deliver up the possession of the said premises to the lessors or their legal representatives in as good repair as the same were at the commencement of the lease, reasonable wear and tear and damage by fire, war, and trespass only excepted." (49 N.J.L. 292.)

On the 29th of August, 1884, the parties concluded an agreement in writing, indorsed on the lease, for the surrender of the premises, in these words: "August 29, 1884. In consideration of David R. Reed, the within named lessee, relinquishing possession of the within described premises to said lessors, on the first day of September, A. D. eighteen hundred and eighty-four, the said lessors do hereby agree to release the said Reed from payment, on the within lease, of twenty and eighty-five hundredths dollars, leaving a balance due on said lease by said Reed of forty-one and sixty-five hundredths dollars. The said lessors, however, to allow said Reed to retain possession and use of the room in said property, in which he shall store his goods, for such reasonable time as will permit him to secure other apartments. Daniel Snowhill." (49 N.J.L. 292.)

This agreement was executed by the payment of the balance of the rent and the surrender of the premises.

The supreme court of errors and appeals says: "With this ending of the estate or interest in the lands goes also all covenants in the lease which had not matured and become actionable during the continuance of the estate."

But the covenant in a lease to restore possession of the leased premises in good condition at the expiration of the lease is held, by all authorities, in case of its violation, to be actionable. And the New Jersey Court does not hold otherwise. It is considered as having matured and become actionable during the continuance of the estate. The right of action accrues, if at all, at the same time with the expiration of the lease and not afterward.

But in the case of Reed v. Snowhill the court says: "The words 'on the expiration of said lease,' in the covenant, construed as the parties understood them at the time the lease was executed, did not contemplate any other end than the full term for keeping the covenant."

There is some reason for saying this in that case which does not obtain in the case at bar. The lessors made their demand for repairs soon after the surrender of the lease, but did not bring their action till after...