Nelson v. Oversmith, 7470
| Decision Date | 03 January 1949 |
| Docket Number | 7470 |
| Citation | 201 P.2d 747,69 Idaho 1 |
| Parties | NELSON v. OVERSMITH |
| Court | Idaho Supreme Court |
Appeal from District Court, Second Judicial District; Latah County O. C. Wilson, Judge.
Modified, and affirmed as modified.
Robert W. Peterson, of Moscow, and Cox, Ware & Stellmon, of Lewiston, for appellant.
If a lease fixes a time within which repairs shall be made, or a building restored, and such repairs are not made, or such restoration begun within the time specified therefor, the lease is terminated. 51 C.J.S., Landlord and Tenant, § 99, page 672, Notes 11 & 12; Stylist, Inc., v O'Connor & Goldberg, 1944, 323 Ill.App. 288, 55 N.E.2d 410; Levy v. Equitable Life Assur. Soc., 6 Cir., 1908 161 F. 283.
Estes & Felton, of Moscow, for respondent.
A provision in the lease permitting the lessee to be released from his contract upon default of the lessor by failure to perform certain obligations under the lease does not permit the lessor to default and then declare the lease void as a result of the lessor's own act. Central Oil Co. v. Southern Refining Co., 154 Cal. 165, 97 P. 177; Bank of America National Trust & Savings Ass'n v. Moore, 18 Cal.App.2d 522, 64 P.2d 460; Ganson v. Tifft, 71 N.Y. 48; 28 A.L.R. 1539; Oppenheimer v. Szulerecki, 297 Ill. 81, 130 N.E. 325, 28 A.L.R. 1439.
On or about March 8, 1946, appellant being the owner of a certain store building in Moscow, Idaho, leased the same to respondent by written lease for a term commencing February 1, 1946 and expiring February 1, 1949, at an agreed rental of $ 70.00 per month. The lease provided that lessee should, at his own expense, make necessary or his desired alterations, improvements, decorations and cleaning except such as might be caused by fire, leakage, or other elements over which he had no control; and that the lessor at her own cost and expense should make all necessary structural and external repairs.
The lease concluded with this paragraph:
"It is further agreed that in the event that said building or premises shall become damaged, without fault by the lessee, so that the same cannot reasonably be used for the purposes herein specified, or be destroyed by the elements, then the said lessee shall not be required to pay rent for the use thereof during any such time, provided, however, that the said lessor shall be given a reasonable time within which to put said premises in repair so that they can be used for the purposes specified in this lease, and such repairs shall be commenced by the said lessor within three (3) days of the same being damaged and shall be completed as rapidly as possible, and must be completed within thirty days from the date of such damage if labor and materials available, otherwise, the said lessee shall be released from this contract, and it is understood that the said lessee shall not pay any rent during such time as the same is unfit for the uses and purposes herein specified."
On or about February 16, 1947 a fire occurred on the demised premises as a result of which the roof and front portion of the building were burned and the ceilings and walls were damaged by water. The area constituting the East 45 feet or rear of the ground floor was separated from the front portion by a brick wall.
The trial court found and the evidence shows that the building was damaged to such an extent that approximately two-thirds thereof was unusable by respondent for any purpose, and the remaining one-third, being the rear portion above referred to, was usable by him for storage purposes only.
For sometime after the fire, appellant did nothing about restoration or repair of the building although respondent remained ready and willing to continue with the lease when restoration was made. On or about August 1, 1947, appellant did commence restoration and completed the same in early October, 1947. The court found that she could have commenced such restoration and rebuilding by April 1, 1947 and completed the same no later than August 1, 1947.
During the restoration and rebuilding, appellant removed certain personal property of respondent which was stored in the usable part of the premises, and, after rebuilding, refused him the right to reoccupy the premises, contending that under the terms of the lease her failure to rebuild or restore within the time limited by the lease constituted a termination thereof.
Respondent then brought this action for a decree restoring him to occupancy and for damages as follows:
(a) Loss of profits from his rug cleaning business after the time restoration could have been completed;
(b) Additional rental paid for other premises for the same period;
(c) Cost of floor, linoleum covering, plumbing, wiring and painting installed by respondent and alleged to have been removed by appellant.
By cross-complaint, appellant claimed termination of the lease under the clause above quoted and asked damages for $ 1,200 for respondent's failure to remove his property from the premises, alleging such failure delayed her contractor in the work of rebuilding.
The trial court found against appellant on her claim for damages and since such finding is supported by the evidence, we will not consider it further.
The court further found and concluded that, under the terms of the lease, appellant was obligated to restore the building and that respondent was damaged in the amount of $ 100 per month for loss of business during the period referred to, i. e., from August 1, 1947 and so long thereafter as appellant refused respondent possession; that such loss was occasioned by respondent's inability to clean rugs; that respondent was further damaged in the sum of $ 25 per month for additional rentals paid for other quarters, and in the sum of $ 356.80, the cost to him of installation of a wooden floor and linoleum covering therefor, located in the East 45 feet of the property and which was not damaged by fire but removed by appellant's contractor.
The trial court entered a decree accordingly from which this appeal is taken.
The assignments of error present the following questions:
(1) Was appellant obligated to restore?
(2) Did the lease terminate by its terms for failure of appellant to rebuild within the time specified?
(3) Is respondent entitled, under the evidence, to the damages allowed?
It is unnecessary for us to decide whether any of lessor's covenants obligated her to restore or rebuild the premises. She did make restoration during the term of the lease although a...
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