New Era Mfg. Co. v. O'Reilly
| Decision Date | 19 June 1906 |
| Citation | 95 S.W. 322,197 Mo. 466 |
| Parties | NEW ERA MFG. CO. v. O'REILLY et al. |
| Court | Missouri Supreme Court |
An owner of a building suitable for occupancy by two tenants leased the part containing the boiler plant for furnishing heat, light, and power for the whole building. He subsequently executed a lease of the other part of the building. The second lease bound the lessee therein to pay to the lessee in the first lease one-half of the cost of operating the boiler plant, and provided that if the part of the premises containing the boiler plant became vacant the lessor would pay any excess in the cost of operating the heating plant which might be caused thereby to the lessee in the second lease. Held, that the owner did not impliedly covenant in the second lease to furnish steam for the building.
2. SAME—EVIDENCE—ADMISSIBILITY.
In an action against a landlord for failing to furnish heat for the premises leased, evidence that the landlord made an allowance on the rent for the time covered by the lease before certain improvements required thereby were placed in the building was inadmissible.
3. SAME—BREACH OF STIPULATIONS IN THE LEASE—AVAILABILITY.
A lessor of a building agreed to install a dynamo and engine therein for the use of the lessee. The lessor installed a dynamo and engine, and there was no evidence that the lessee made any complaint that the same were not of the character and capacity called for in the lease. The lessee used the engine and dynamo furnished for a year before the lessor's death and made no complaint. Held, that the lessee was precluded thereafter from objecting on the ground that the dynamo and engine furnished did not comply with the stipulations in the lease.
4. EVIDENCE—ADMISSIBILITY—REMOTENESS.
Where, in an action by a lessee for damages for the failure of the lessor to install in the building leased a dynamo and engine of the character called for, there was no proof as to how the dynamo and engine installed had been used, evidence of a test made two years after the same had been installed, and six months after the same had broken down, was incompetent, as showing that the same was not when installed of the character called for in the lease.
Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.
Action by the New Era Manufacturing Company against Mary Archer O'Reilly and others. From a judgment for defendants, plaintiff appeals. Affirmed.
Lee Sale, for appellant. Kinealy & Kinealy and Jas. P. Maginn, for respondents.
This was an action commenced in the circuit court of the city of St. Louis for alleged breaches by the lessor in a certain lease made by the lessor, Dr. Thomas O'Reilly, to the plaintiff company on the 25th of October, 1899. The petition alleged: That on said date the said O'Reilly leased to plaintiff the premises known as 905 and 907 Lucas avenue in the city of St. Louis for a period of five years commencing January 1, 1900. That the said premises were a part of a certain eight-story brick building and basement known as "901, 903, 905, and 907 Lucas avenue." The said building and basement were divided off by partition walls so as to render them fit and suitable for occupancy by two distinct tenants, 901 and 903 by one tenant, and 905 and 907 by another; both of said tenements being adapted for use as manufacturing establishments. That the premises 901 and 903 at the time of the execution of the lease to plaintiff, contained a boiler plant adapted for the production of steam which was to be used for furnishing heat, light, and power for both tenants, and that there were pipes and other apparatus running from the premises 901 and 903 through and about the floors of premises 905 and 907, which were connected with the boiler plant, and receiving steam therefrom. That there is also in the premises 905 and 907 two elevators with the necessary machinery and apparatus for operating the same and also machinery and apparatus for heating the premises by means of steam generated by the said boiler plant. The petition then alleges that at the date of the lease Singer Bros. were in possession of 901 and 903 under a lease from said O'Reilly; that in the lease to plaintiff said O'Reilly agreed to put the boilers, engines, elevators, and radiators, and the machinery for operating the two elevators, and for heating the building in good condition, and to wire the building for electric lighting, and to furnish in the premises 901 and 903 a 30-kilowatt 220-volt constant potential direct coupled dynamo and engine, and to deliver the premises to plaintiff on December 15, 1899. It is further alleged that by said lease said O'Reilly obligated plaintiff to pay to the lessee of the premises 901 and 903 monthly on demand one-half of the total cost of running and operating the boiler plant, including in such costs all outlays for salary, wages, coal, repairs, and other expenses, and that it was provided that such payment by plaintiff should be for the steam heat and power and the running of the said dynamo and engine, and also for live steam for plaintiff's dryer and laundry machine, and in consideration of said monthly payment by plaintiff to lessee of 901 and 903 would furnish steam for all purposes aforesaid. It is then alleged that on December 15, 1899, plaintiff took possession of the premises 905 and 907 with all repairs and alterations made except the installation of the dynamo and engine, which was provided for in the lease, plaintiff relying upon the agreement of O'Reilly to furnish the dynamo and engine later; that on February 22, 1900, O'Reilly installed the dynamo and engine, which plaintiff alleges was not capable of doing the work of a 30-kilowatt 220-volt dynamo and engine, but was of inferior capacity, and insufficient for the uses of which said dynamo and engine are designed. The petition then proceeds to state the various items of damage to plaintiff by the insufficiency of the dynamo and engine furnished by O'Reilly; that since the taking of possession by plaintiff of the premises on December 15, 1899, plaintiff had paid to Singer Bros., the tenants of the premises 901 and 903, half of the total cost of running and operating the said boiler plant and was continuing so to do as required by said lease; that on February 11, 1902, Singer Bros. did decline and refuse to furnish steam to plaintiff for the running of said dynamo and engine unless plaintiff would agree to pay the entire cost of furnishing said steam and of running and caring for the said dynamo and engine, and that plaintiff thereupon notified the defendants of such refusal on the part of Singer Bros., but defendants have failed and refused to require Singer Bros. to furnish such steam; that the said O'Reilly died February 24, 1901. Plaintiff then states that while the dynamo and engine were being operated in plaintiff's premises between February 22, 1900, and June 23, 1901, at which time it broke down, plaintiff was required to pay, and did pay, the entire cost of the services of a competent electrician whose services were required for the care of the dynamo and engine, and that Singer Bros. refused to furnish an electrician for that purpose, by reason of which failure plaintiff was compelled to expend $731.45. The petition further alleges that since June 3, 1901, plaintiff has been compelled to obtain all of the electric light and power required by it for use in its business from persons other than the Singer Bros., to furnish steam for the dynamo and engine plaintiff will be compelled to purchase electric light and power during the unexpired term of the lease, all to the plaintiff's damage in the sum of $5,650.30.
Inasmuch as the court sustained a demurrer to the evidence, it is deemed unnecessary to refer to the answer of the defendant and plaintiff's reply thereto. The lease offered in evidence, let to the plaintiff, "the eight-story brick building and basement known as "Nos. 905 and 907 Lucas avenue" for a period of five years commencing January 1, 1900, at a rental of $4,000 per year for the jobbing and manufacturing of shirts, cloaks, suits, etc." For the purpose of this case the material provisions of the lease are as follows: "Said lessor hereby covenants and agrees to put the boilers, engines, elevators, and radiators, and all the machinery and apparatus in said building for the operation of the two elevators therein, and for the heating of said building, and all plumbing and sewer connection in good condition." The lessor further covenants and agrees to make the following alterations, additions and repairs in and to said premises, to wit: (1) To furnish a 30-kilowatt 220-volt constant potential direct coupled dynamo and engine, for the exclusive use of said lessee. (2) To wire the building for twenty multiple arc and 200 16 candle power incandescent lights, and to furnish 20 arc lamps of a pattern similar to those used by the Imperial Electric Light, Heat & Power Company, of this city, namely, a direct current inclosed multiple arc lamp; outlets and arc lamps to be located as designated by lessee. It is further agreed that should Singer Bros. vacate their present building, 901 and 903 Lucas avenue, during the period of this lease, said party of the second part shall get...
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