Nelson v. Eichoff
| Decision Date | 25 April 1916 |
| Docket Number | 5464. |
| Citation | 158 P. 370,59 Okla. 210,1916 OK 476 |
| Parties | NELSON v. EICHOFF ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied June 27, 1916.
Syllabus by the Court.
Where a landlord being under covenant to place a building in a condition suitable for conducting a certain business fails to do so, and by reason of such failure the building is not only not suitable for said business, but is unsafe and dangerous the lessee is justified in abandoning the leased premises and after such abandonment cannot be held liable for rent. Partridge v. Dykins, 28 Okl. 54, 113 P. 928, 34 L R. A. (N. S.) 984, distinguished.
The lessee under such circumstances is not estopped to set up the lessor's breach of covenant, although he remained in possession for some time and paid rent, where he did not know of the defects in the building at the time he took possession, and after discovering them remained by reason of lessor's promise and attempts to repair, until the increasing defects in the building rendered the premises unsafe.
Commissioners' Opinion, Division No. 2. Appeal from County Court, Oklahoma County; John W. Hayson, Judge.
Action by A. R. Nelson against O. L. Eichoff and another for rentals under an indenture of lease. From a judgment for defendants plaintiff appeals. Affirmed.
Everest & Campbell, of Oklahoma City, for plaintiff in error.
Sam Hooker and Mont F. Highley, both of Oklahoma City, for defendants in error.
The plaintiff in error in this cause, who was also plaintiff in the court below, filed his petition in the county court of Oklahoma county, alleging that on or about the 5th day of March, 1909, he entered into a certain agreement with the defendants, whereby he agreed to erect for them a building on certain lots in Oklahoma City, and they in turn agreed to use and occupy the same for a term of five years from the 1st day of May, 1909, at a monthly rental of $150 per month; that on the 1st day of June, 1912, the defendants ceased to pay rent and that plaintiff was entitled to recover for the amount then due on the contract. Certain material provisions of the contract are as follows:
The plaintiff also in a supplemental petition sought to recover certain rents accruing since the filing of the suit, and to recover $21.15 water rent and repairs, which he alleged the defendants should have paid. The defendants answered, admitting the execution of the contract, and alleging that the plaintiff failed to carry out the terms of the same, in that he did not erect a building of the kind and character contemplated by the terms of the agreement; that the building erected was not substantial and settled upon its foundation from 8 to 12 inches; that the walls of said building cracked; that the floors leaked, all of which made the building unsafe and unsuitable for the purposes for which it was intended to be used under the terms of the contract; that plaintiff had been notified thereof and had been called upon to fix said defects, but that he had wholly failed and refused to do so, and had failed to make the building substantial, or to fix the same so that the defendants could continue to pursue their business with reasonable safety to themselves and their property, because of which they were compelled to close out the business and abandon the building.
The plaintiff filed a reply in the form of a general denial, and afterward, at the trial, was allowed to file an amended reply, in which he set up, first, a general denial, and, second, a waiver and estoppel by reason of the fact that, as alleged, the defendants had seen the building erected, accepted the same, and moved into it and paid rent for a long period of time; that the damage to the wall occurred long after they accepted the building, and that the defendants were under covenant to repair said damages. There was a trial to the court and a jury, and a verdict given in favor of the defendants. Judgment was duly rendered thereon, motion for new trial filed and overruled, and the plaintiff brings the cause here for review.
The contention of the plaintiff relied upon for a reversal is well stated in his brief, as follows:
"The theory upon which the plaintiff in error proceeded was that, whether or not the building was constructed in accordance with the original contract, the defendants in error by the acceptance of it, and by the continued occupation of it after the discovery of the alleged defects, thereby waived their right to insist upon the performance of the contract as originally made, if it had not in fact been performed; and that, by their failure to promptly assert the right to a cancellation of the lease and a rescission of the contract upon the discovery of the defects, and failure of consideration alleged, they were estopped to set up such matters as a defense at the trial."
Plaintiff asserts that in consonance with this theory he offered the following instruction, which was refused:
"The court instructs you that the contract between plaintiff and defendants introduced in evidence did not require the plaintiff to build a building in all respects like the building at 119 West Second street; and, if you find that the defendants knew of the general character of said building, or had an opportunity so to know while it was being constructed, and moved into said building without protest as to the character of materials and the construction thereof, and continued to pay rent after he claims to have discovered the defects now claimed to exist, that these facts would not preclude the defendants from asserting that said building was not built according to the contract, and these defects would be no defense to plaintiff's recovery in this action."
Even if the plaintiff's theory were upheld, this instruction is entirely too broad. Certainly knowledge of the "general character" of the building would not necessarily charge defendant with knowledge that it would settle, crack, and become dangerous, much less that the floor would leak. Nor is there any support for the proposition that an "opportunity to know" charges one with knowledge. One doubtless has an "opportunity to know" the condition of a building in New York, since he may board the train and go there, but so long as he stays in Oklahoma, I apprehend, he cannot be said to be charged with knowledge of the defects in the construction of this building. Neither ought the defendant to be charged with knowledge of the defects in the construction of this building because he passed it once or twice while it was being constructed. Passing, however, to a consideration of the general propositions raised by plaintiff it appears that, though in some respects sound, the contention cannot be sustained when applied to the facts of the instant case. It is settled law in this state that there is no implied covenant upon the lessor to repair, or keep in repair, a building leased for business purposes. Tucker v. Bennett, 15 Okl. 187, 81 P. 423; Horton v. Early, 39 Okl. 99, 134 P. 436, 47 L. R. A. (N. S.) 314, Ann. Cas. 1915D, 825; Jones v. Kress & Co., 153 P. 655, and cases cited. It is also true that the lease contains a covenant which, though peculiarly worded, evidently expresses the intention of the parties that the lessee is to keep the building in repair, during the entire period of the lease; but from a consideration of the whole instrument it is clear that the lessor was, in the first place, to furnish a building "suitable for use as a livery stable and to be finished in a manner similar to the building" at that time occupied by the defendants. In our judgment, it is a fair conclusion that it was the intent of the parties that the lessee should be liable for ordinary repairs, but not for changes or alterations necessary to place the building in the condition in which the lessor agreed to deliver it. This...
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