Mellios v. Charney

• Decision Date: 26 November 1957
• Docket Number: No. 28,28
• Citation: 350 Mich. 199,86 N.W.2d 266
• Parties: Stefo Thomas MELLIOS and Gust Thomas Mellios, Plaintiffs and Appellees, v. Nicholas CHARNEY, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 266

86 N.W.2d 266

350 Mich. 199

Stefo Thomas MELLIOS and Gust Thomas Mellios, Plaintiffs and Appellees, v. Nicholas CHARNEY, Defendant and Appellant.

No. 28.

Supreme Court of Michigan.

Nov. 26, 1957.

William H. Wise, Lansing, for defendant and appellant.

Paul C. Younger, Lansing, for plaintiffs and appellees.

Before the Entire Bench.

SHARPE, Justice.

This is an action to recover damages for an alleged breach of a written lease of plaintiffs' premises by defendant. The essential facts are as follows: On or about September 23, 1949, the parties entered into a lease for a period of five years with rent payable at the rate of $100 per month. The lease contained the following:

'And the said party of the second part, for himself, his executors, administrators and assigns, does hereby hire the said premises for said term of five (5) years as above mentioned, and covenants well and truly to pay, or cause to be paid, unto the said parties of the first part their representatives, heirs and assigns, at the days and times above mentioned, the rent above reserved, and does further covenant that he will not assign or transfer this lease or sub-let said premises or any part thereof, without the written assent of said parties of the first part; and does further covenant that he will at his own expense, during the continuance of this lease, keep the said premises and every part thereof in as good repair as when taken, and at the expiration of said term, yield and deliver up the same, in like condition when taken, reasonable use and wear thereof and damage by the elements excepted, and does further covenant that said premises, during the continuance of this lease, shall be used and occupied for commercial purposes and assigns, does further covenant, that at the end of the said term, he shall and will peaceably and quietly leave, surrender and yield up the said premises unto the said parties of the first part, their heirs and assigns; * * *'

Plaintiffs purchased the building in question in about 1945 or 1946. It is a brick building approximately thirty years old. Plaintiffs had operated a restaurant and bar on the first floor. The second floor contained two apartments. An oil heating system was in the basement. After operating the restaurant for approximately eighteen months, defendant purchased a place of business about 150 feet west of plaintiffs, building and moved his bar and restaurant to the new site. The first floor of plaintiffs' building stood empty for a period of approximately three and one-half years. Defendant paid all rent due during this period. The building was heated sufficiently for the two apartments on the second floor.

It also appears that while the lease terminated in September, 1954, plaintiff permitted the first floor of the building to stand empty until December, 1955, at which time it was rented to Clyde Schneider and his brother, who repaired the damage and received ten months free rent at $125 per month for such repairs. No repairs were made to the upstairs apartments.

The cause came on for trial without the aid of a jury. At its conclusion the trial court awarded plaintiffs a judgment in the amount of $1,634.50. Defendant appeals and urges that he should not respond in any damages, and that if he is liable in damages the trial court granted an excessive amount.

During the trial of the cause plaintiffs introduced testimony to the effect that ordinary wear and tear would not have caused the damage during the time defendant held the lease on the premises; that the plaster was loosened by steam coming out of steam pipes; that floors were buckled and rotted; that plaster was missing in places where the steam pipes were not working properly; that the women's toilet was cracked and had to be reset with new fittings; that the covering for electrical wires was rotted and deteriorated.

Defendant testified that during the term of the lease he did not change the front doors or remove the thresholds; the doors and thresholds were in the same condition in 1954 as they had been at the beginning of the term in 1949. Water had seeped in under the front door not only during the...