Nixon v. Gammon

• Decision Date: 25 March 1921
• Parties: NIXON v. GAMMON.
• Court: Kentucky Court of Appeals

229 S.W. 75

191 Ky. 175

NIXON v. GAMMON.

Court of Appeals of Kentucky.

March 25, 1921

Appeal from Circuit Court, Boyd County.

Action by Harry Nixon against O. V. Gammon. Judgment for defendant and plaintiff appeals. Affirmed.

H. R Dysard, of Ashland, for appellant.

E. D Stephenson, of Pikeville, and P. K. Malin and Prichard & Malin, all of Ashland, for appellee.

SAMPSON J.

Appellee, Gammon, leased a storeroom with certain appurtenances, in the city of Ashland, to appellant, Nixon, for period of 10 years from August 1, 1917, at the monthly rental of $150, and a bonus of $1,000 "for the business location." In addition, appellee purchased certain fixtures then in the building, for which he agreed to pay Gammon $400, and the sum was added to the bonus $1,000, a total of $1,400, and the whole paid $700 cash and the balance in $100 monthly installments beginning September 1, 1917.

The written contract between the parties is too long to copy in full, but contains the following provisions:

"Witnesseth: * * * Has leased, let, demised and rented unto the said lessee, his executors, administrators and assigns, for the term of ten (10) years from and after August first (1st) 1917, the following described property, to wit: (Here follows description.) * * * It is understood and agreed between said lessor and lessee, that in consideration of this lease and of the price and terms of payment thereof, hereinafter set out, the said lessor has sold, transferred and delivered and by these presents does sell transfer and deliver unto said lessee, the following described property, and the business location of said building, known in business parlance as a 'bonus':

One (1) twenty (20) foot wall case.

One (1) eight (8) foot cigar case.

One (1) National cash register.

One (1) lot of wall mirrors.

For said property the said lessee agrees and binds himself to pay the said lessor, the sum of four hundred (400) dollars, and as a bonus for the business location, the sum of one thousand ($1,000.00) dollars, a total of fourteen hundred ($1,400.00) dollars, said sum to be paid in manner and form as follows: * * * It is mutually understood and agreed between the parties hereto that full rental for the premises covered by this lease the lessee shall pay to the lessor the sum of one hundred and fifty (150.00) dollars per month, payable in advance on the first day of each month from and after August 1st, 1917 during the term of the lease, it being understood and agreed that if at any time the said lessee shall be in default for a period of thirty days in the pay of any installment of the rent after same has become due, then at the option of the lessor by giving the lessee at the expiration same thirty (30) days' written notice of his intention so to do provided, however, this section shall be null and void if such default be caused by wanton or willful acts of the lessor, or by the destruction of the said premises by fire, act of God, or the elements.

It is further mutually understood and agreed between the parties hereto that at the option of the lessee this lease shall terminate if said premises at any time shall be destroyed or rendered untenable by fire, act of God, the elements or otherwise.

The said lessee shall have the right under this lease to have made to the premises hereby leased such improvements and repairs as he may desire or may be necessary to put same in proper and fit condition for his business, such improvements and repairs to be made at the cost of the lessee and to be made in such manner and with such workmanship as in no wise to damage said building, it being understood and agreed that such improvements and repairs as are placed on the building by the lessee shall become the sole property of said lessor, his executors, administrators or assigns. It is further mutually understood and agreed between the parties hereto, that the lessee shall have the right to install in said building such furniture, fixtures, and equipment as he may desire or as may be necessary for his business, same remaining the property of the lessee, and the lessee shall have the right to remove same or any part thereof at the termination of this lease or at any other time he may desire. The lessee shall have the right also to install a suitable electrical or other sign in front of said building and to make all necessary attachments of same and wiring for same to and through said building. * * * It is further agreed and understood that the term of this lease shall be for period of ten (10) years from the first day of August, 1917, but immediately upon signing this lease the lessee shall have the right before said date, to enter upon said premises and take possession of same for the purpose of putting same in proper and fit condition for the establishment and conduct of his business therein. The said lessee further agrees that he will keep said premises in good condition of repair and at the termination of this lease to surrender same to lessor in as good condition as they now are, ordinary wear and tear from reasonable use thereof excepted. It being understood, however, that all extraordinary repairs required on said building shall be done by the lessor at his expense."

The lease contract contained many other terms which it is not necessary here to copy.

Eight months after lessee, Nixon, took possession of the property, and had made several improvements, among them the installation of mirrors and other decorations, but most important of all a tile floor which alone cost $500, the building was in part destroyed by fire so that the rented premises were untenantable. At this time the whole bonus, $1,000, had been paid as well as all the rents, $150 per month, for the eight months of the ten-year lease.

The lessor, Gammon, failed and refused to reconstruct the building so as to make the part leased to Nixon tenantable, and Nixon brought this action to recover $933.33, the alleged unearned portion of the $1,000 bonus; $500 for the alleged value of the tile floor put in the building by lessee; $400 damages to the fixtures of lessee; and $7,500 for loss of business which lessee had built up in his restaurant in the eight months which he had occupied it.

The trial court first overruled a general demurrer to the petition, and defendant answered relying upon the contract as excusing him from liability for either of the losses averred in the petition. After reply was filed, the plaintiff amended his petition, averring in substance as in the original petition, but in somewhat better form. To the petition as amended the defendant again filed a general demurrer, which was after more mature consideration by the court...