A. Meyers & Bro. v. Henderson
| Decision Date | 07 May 1894 |
| Docket Number | 11,448 |
| Citation | 49 La.Ann. 1547 |
| Parties | A. MEYERS & BRO. v. W. H. HENDERSON ET ALS |
| Court | Louisiana Supreme Court |
Argued April 26, 1894
Argued and submitted on application for rehearing November 7, 1894.
Opinion handed down January 2, 1895. [*] Rehearing Considered.
APPEAL from the Civil District Court for the Parish of Orleans King, J.
Lazarus Moore & Luce, for Plaintiffs, Appellees.
Fenner Henderson & Fenner, for Defendants, Appellants.
The plaintiffs leased from defendant, Henderson, the property No. 100 Canal street, for a term of five years from 1st October, 1890.
The property was partially destroyed by fire, and this suit was instituted by plaintiffs to annul the lease.
There was judgment for plaintiffs and defendant appealed. The lessors admit the partial destruction of the property, and are willing to remit that part of the price of the lease during the time the building was undergoing repairs. There is an energetic controversy in the case as to the interpretation of Art 2697, C. C., whether the right of election to so demand, in case of partial destruction of the premises, the reduction of the rent, or the dissolution of the contract of lease, when made by the lessee, becomes absolute when exercised, leaving no discretion to the court, which is bound to give judgment in accordance with the election made by the lessee. Practically, the discussion amounts to little, for if the lessor resists the demand of the lessee for the dissolution of the lease, the question of "partial destruction" must necessarily go to the courts for solution. It becomes one of fact.
Article 2697, C. C., says:
rticle 2699 says: "If without any fault of the lessor the thing ceases to be fit for the purposes for which it was leased, or if the use be much impaired, as if a neighbor, by raising his walls shall intercept the light of the house leased, the lessee may, according to circumstances, obtain the annulment of the lease, but has no claim for indemnity."
From the above article it is clear that it is not every partial destruction which will dissolve the lease, but it depends upon the facts of each case, "according to the circumstances," whether the lease shall be annulled. It may be that only portions of the building may be destroyed which would not disturb the quiet possession of the lessee, or greatly inconvenience him, such for instance as the partial destruction of ornamental work, exterior cornices, galleries, sheds, etc. It would be quite different if there were such a partial destruction as to expose the inmates of the house and their property to the elements, thus compelling them to abandon the house and deliver it into the possession of the lessor for purposes of repair. In such a contingency the thing leased ceases to be in that condition to serve the purposes for which it was leased, and the lessee's peaceable possession of the thing leased is disturbed. C. C. 2692; Coleman vs. Height, 14 An. 570.
In case of Dussau vs. Husband, 6 An. 279, the court said that "the lawgiver did not contemplate the dissolution of leases, except in extreme cases, but rather an equitable indemnity to the tenant for a temporary inconvenience sustained unexpectedly and without the fault of the lessor." And this doctrine has been affirmed in 17 An. 322; 12 An. 823; 21 An. 23. But when the partial destruction has been of such a nature as to menace discomfort to the tenant during the entire term; to cause the tenant to abandon the premises in order that repairs may be made when the premises are no longer suitable for the purposes for which they were leased, in such cases it is clear that the lease should be annulled.
The partial destruction of the building leased by plaintiffs from defendants made it entirely unfit for the purposes for which it was leased. It was a wreck. It was not habitable; it was unfit for the storage of goods and merchandise. The necessary repairs to it required...
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