Meador v. Blonde

• Decision Date: 23 March 1926
• Docket Number: 1217
• Citation: 34 Wyo. 397,244 P. 222
• Parties: MEADOR v. BLONDE [*]
• Court: Wyoming Supreme Court

244 P. 222

34 Wyo. 397

MEADOR v. BLONDE ^[*]

No. 1217

Supreme Court of Wyoming

March 23, 1926

ERROR to District Court, Hot Springs County; PERCY W. METZ, Judge.

Action by Ada F. Blonde against Orva Meador, and another, to recover sums paid out for repairs and fixtures on leased premises. There was judgment for plaintiffs and defendants bring error.

Affirmed.

M. C Burk, for plaintiffs in error.

The petition is insufficient to support the judgment; it is not alleged that plaintiff is the owner; the petition shows that the claim for damages relates to property not included in the lease; allegations of assignment are indefinite; 16 R. C. L 638; Bordeaux v. Walker, 85 Ill.App. 86; covenants as to repairs and delivering the premises in good condition applied only to the premises leased; the lease is annexed as an exhibit, a part of the pleading and the rights of plaintiff must be determined by the terms of that instrument; 21 R. C. L. 476-77; Green v. Assurance So., 54 N.E. 712; the action as against defendant, Morrow, is on his contract of surety and he has a right to stand upon the terms of his obligation, strictly construed; 21 R. C. L. 975; Tutty v. Ryan, 13 Wyo. 134; the heating plant was not a part of the leased premises nor within the provisions of the lease, and the bond to keep the covenants of the lease could not in any manner be held as the basis of an action for damages to the heating plant; the petition fails to state facts sufficient to constitute a cause of action.

Albert D. Walton and P. C. Spencer, for defendant in error.

The action is by the assignee of a lessor against the assignee of a lessee and the surety of said assignee to recover damages for breach of covenant of a certain lease; of the five alleged errors assigned, but three are reviewable in the absence of a bill of exceptions; the petition clearly alleges ownership of the premises in the plaintiff at the time the interests of the original lessor were assigned to her; plaintiff was not required to plead her source of title; it is alleged that the lessee was obligated to operate the heating plant in said building and thus supply heat to each and every part of the building and keep the premises in repair at the expense of said lessee; the heating plant was a part of the premises leased; it is alleged that lessee failed to perform the terms of the lease; the trial court gave plaintiff a judgment for $ 700.00 and allowed defendants $ 100.00 on the cross petition, leaving a net judgment in favor of the plaintiff in the sum of $ 600.00; the findings and judgment cannot be disturbed for the reason that the evidence is not before the court.

M. C. Burk, in reply.

The word "appurtenances" never includes other property; it means something connected with leased premises; 16 R. C. L. 712; 36 CJ 32; the relation of landlord and tenant did not exist with respect to the heating plant; plaintiff in error was simply performing the duties of an employee in operating the furnace and is not liable for the loss sued upon.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action brought by Ada F. Blonde, assignee of Charles E. Blonde, against Orva Meador and James A. Morrow, to recover the sum of $ 1959.58 for repairs on a building, paid out by plaintiff and which she claims should have been paid by the defendants. Judgment was rendered for plaintiff in the sum of $ 600, from which said defendants have brought proceedings in error. The parties will be referred to herein as in the court below.

On September 16, 1919, Charles E. Blonde, assignor of the plaintiff, entered into a written lease with one Edmon Meador, leasing to said Edmon Meador the second floor of the building known as the Richards Block, a store building two stories high, in the town of Thermopolis, Wyoming, from the 1st day of October, 1919, to September 30, 1922, at a rental of $ 200 per month. The lessee aforesaid agreed in the lease, among other things, "to run the heating plant for the entire building and to furnish satisfactory heat for each and every apartment in the entire building now arranged to be heated by said plant, all of said expenses incurred therefor to be paid by "said lessee; "to pay each and every obligation of debt incurred or contracted for the heating of the entire building, both first and second floors, for the term of this lease; * * * to care for and pay all incidental expenses or repairs on said leased premises; * * * and to pay all repairs necessary for plumbing and lighting systems for these premises; * * * to keep the roof and exterior of the building in good repair and in condition at all times."

The lessee further stipulated that he received the building in good order and repair and that at the termination of the lease he would yield up the premises in as good condition and repair as when the same was entered upon by him, loss by fire or inevitable accident excepted. Edmon Meador, the lessee aforesaid, assigned the lease, with the consent of the lessor, on October 6, 1920, to the defendant, Orva Meador, and the latter agreed to furnish a good and sufficient bond for performance on his part of the covenants undertaken by the lessee in said lease. This bond was furnished and was executed by Orva Meador, as principal, and James A. Morrow, defendant herein, as surety, whereby they agreed, in substance, to fulfill and carry out the covenants undertaken by the lessee in the lease hereinbefore mentioned.

The petition sets out the general terms of the lease and further states, among other things, that Orva Meador, defendant herein, negligently permitted the heating system in said building to become out of repair, the plaintiff alleging the following:

"That on or about the 31st day of January 1922, and...