Moe v. Sprankle
| Decision Date | 10 November 1948 |
| Citation | 221 S.W.2d 712,32 Tenn.App. 33 |
| Parties | MOE v. SPRANKLE (two cases). |
| Court | Tennessee Court of Appeals |
Consolidated suits in equity by Albert Moe against B. H. Sprankle for trespass and breach of a covenant of quiet enjoyment of business premises, leased by defendant to complainant, in permitting water to seep through ceiling and damage complainant's merchandise because of defective plumbing in overhead apartments leased by defendant to other tenants breach of contract to pay for change in plumbing of leased premises, and injunction against forfeiture of the lease. Decree for complainant, and defendant appeals.
Affirmed and decree rendered for the amount of recovery with interest.
Reuben Nichols, of Knoxville, for appellant B H. Sprankle.
N. B. Morrell and Strauss & Strauss, all of Knoxville, for appellee Albert Moe.
These two suits were instituted in the Chancery Court of Knox County by Albert Moe against B. H. Sprankle. By the bill in the first suit it was alleged that the defendant Sprankle, on June 28, 1945, leased to the complainant a business building located at 422 Union Avenue, Knoxville, Tennessee, for complainant's use in the operation of a book store, the lease superseding an earlier lease which had not then expired and providing for additional space and an increase in rent. It was alleged that, due to defective plumbing in overhead apartments, leased by the defendant to numerous tenants, water had been permitted to get through the ceiling and upon complainant's books causing damage to the amount of several hundred dollars; that the acts charged constituted both a trespass and a breach of a covenant of the lease by which the defendant, lessor, covenanted that complainant, as lessee, should have the quiet enjoyment of the premises. The bill also alleged a breach of a separate and independent contract by which the defendant agreed to pay for a change in the plumbing contained in the leased premises in the amount of $100,000 for which recovery was also sought.
By the second bill complainant Moe sought to restrain the defendant Sprankle, as lessor, from declaring a forfeiture of the lease. The second suit was consolidated with the first and the two cases were tried together but, during the argument of the cases in this court, it was stated that defendant's appeal in the second suit had been voluntarily dismissed. Our consideration is, therefore, limited to the first suit.
There was a demurrer to the bill in the first suit on the grounds, among others, that the bill failed to show affirmatively that complainant had suffered an eviction either actual or constructive and that the suit in effect was one to recover unliquidated damages which a court of chancery is without jurisdiction to try. The demurrer was overruled with the right reserved for defendant to rely upon the grounds thereof at the hearing.
The defendant, thereupon, filed as answer denying generally all the allegations of the bill and, in particular, that complainant had been damaged as alleged or that there had been a breach of the covenant of quiet enjoyment. It was also denied that the plumbing was defective as alleged, the defendant asserting that any damage suffered by complainant must have resulted from the negligence of tenants occupying the overhead apartments for whose acts defendant was not responsible. No question was raised in the answer of the omission of the bill to allege an eviction or of the court's jurisdiction to entertain the suit. The Chancellor, in his opinion, pretermitted the question of eviction holding that complainant had established his right to maintain the suit on the theory of a trespass. It does not appear that defendant pressed the jurisdictional question interposed by the demurrer. In any event, there was no ruling on that question though it is now strenuously insisted that the court erred in not dismissing the suit upon jurisdictional grounds. We think the demurrer was properly overruled. In alleging a breach of contract to reimburse complainant for $100.00 expended in changing the plumbing, the bill stated a cause of action of which the court clearly had jurisdiction. The demurrer, however, went to the whole bill without pointing out the specific defects relief upon and was, therefore, too broad. Gibson's Suits in Chancery (Higgins and Crownover), Section 306.
As to the alleged cause of action growing out of a breach of the covenant of quiet enjoyment, the first ground of the demurrer made the specific defense that the bill failed to allege an eviction entitling the complainant to recover for a breach of the covenant. The Chancellor indicated in his opinion that this defense was renewed at the hearing but, as stated, the question was pretermitted.
In support of his insistence that no right of recovery exists for a breach of the covenant of quiet enjoyment in the absence of an eviction, defendant relies principally upon Weinstein v. Barrasso, 139 Tenn. 593, 202 S.W. 920, 921, L.R.A.1918D, 1174. In that case the tenant claimed damages to his merchandize caused by overflow from plumbing fixtures in overhead apartments which both the circuit court and Court of Civil Appeals found to be due not to defective plumbing but to the negligence of tenants in the apartments. The Supreme Court found that the two lower courts had properly held the landlord not liable for the losses sustained by the tenant due to the negligence of other tenants and had properly rendered judgment for the rental accruing during the last month which the tenant had occupied the premises. Tiffany on Landlord and Tenant was cited for the following rule:
'* * * nor is the landlord liable when the injury results from defects in appliances on premises leased by him to another when these defects arise after the lease without the landlord's fault, though he is liable if the damage is caused by defects existing at the time of such lease.'
The judgment of the two lower courts was affirmed on the ground indicated but the Court, in the concluding portion of the opinion, responded to the tenant's insistence that he should be relieved of liability for rent because there had been a partial eviction. The court, while recognizing that the rule of partial eviction relieving the tenant of liability to pay rent had been followed in the two cases cited from other states and in Tennessee in Olmstead v. Tennessee Fixture & Showcase Co., 1 Tenn.Ch.A. 653, held that the overflow of water from the overhead apartments, though causing inconvenience and damage, did not amount to a partial eviction. It was further said, since the tenant continued to occupy the premises for the month for which recovery of rent was sought, there had been no constructive eviction, as insisted, and that the premises must have been abandoned by the tenant before he can advance a claim of constructive eviction.
It is thus made apparent that the principal ground of the decision was that the damages sustained by the tenant resulted from a cause for which the landlord was not liable. The question of whether or not there can be a breach of the covenant of quiet possession without an eviction was not raised or determined by the court since the tenant was insisting that he had been constructively evicted.
This court, in the later case of W. E. Stephens Mfg. Co. v Buntin, 27 Tenn.App. 411...
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Couch v. Hall
...of the use of the property. W. E. Stephens Mfg. Company v. Buntin, 27 Tenn..app., 411, 181 S.W.2d 634 (1944); Moe v. Sprankle, 32 Tenn.App. 33, 221 S.W.2d 712 (1949). 'In respect of its extent, an eviction may be total or partial. In order to constitute an eviction, it is not necessary that......