Petz v. Voigt Brewery Co.

Decision Date29 March 1898
Citation74 N.W. 651,116 Mich. 418
CourtMichigan Supreme Court

Error to circuit court, Wayne county; Joseph W. Donovan, Judge.

Action by Sophia Petz against the Voigt Brewery Company, Limited for rent. Judgment for plaintiff for $685, and she brings error. Reversed, and new trial granted.

Keena &amp Lightner, for appellant.

Wilkinson & Post, for appellee.


Plaintiff is the owner of the premises in question. Edward W. Voigt had been in the brewing business in Detroit for many years, when in 1889, he organized the defendant corporation. In September, 1882, plaintiff leased the premises in question to Mr. Voigt personally, for the term of five years, "to be occupied for a restaurant and dwelling." The lessee covenanted that, during that term, he would "keep the said premises, and every part thereof, in as good repair, and, at the expiration of the term, yield and deliver up the same, in like condition as when taken reasonable use and wear thereof and damages by the elements excepted." There was the usual covenant for quiet possession on the part of the lessor, but there was no agreement by her to repair. On April 16, 1887, the parties to this lease executed a renewal lease for five years after the expiration of the first one; i. e. until October 1, 1892. The covenants in this second lease were the same as those above quoted from the first one. February 12, 1891, this second lease having been surrendered for its unexpired term, a new lease was given to the defendant for a term of 10 years from May, 1891; and this lease (being the one upon which this action is based) contained the same clauses as the two prior leases, as quoted above. The rental during the time covered by these leases varied from $2,500 per annum during the first years to $4,000 during the final years. From the time the lessee took possession of the premises, in 1882, until the trial of the cause, in 1897, Mr. Voigt (either for himself personally, or on behalf of the defendant) had the sole and exclusive possession of the whole of said premises, except during three months in 1896, when plaintiff was engaged in making repairs. Mr. Voigt furnished them for the tenants, as he desired, from time to time; and they were taken by the defendant from Mr. Voigt, under the new lease, in precisely the same condition as he had occupied and left them. Mr. Voigt made many changes in the building during his occupancy under the three leases. In August, 1896, plaintiff received notice, through her brother, Joseph Pulte, who managed her business affairs, from the building inspectors, that the side wall of the building was in an unsafe condition, due to its bulging out at the first and second floors, and that it must be repaired. None of the parties interested in the building had noticed this defect before this time. Mr. Pulte saw Mr. Voigt, and some conferences followed between them, resulting finally in an interview between Mr. Voigt and Mr. Lightner, on behalf of plaintiff, which was followed by certain correspondence. Plaintiff offered to make the needed repairs to the wall, but refused to allow anything off the rental during the time the repairs were being made. The keys were handed by defendant to plaintiff's attorneys on August 27, 1896, to make the repairs. On September 2d, Mr. Voigt spoke of not intending to pay rent while plaintiff was engaged in making repairs. At once plaintiff's attorneys returned the keys to Mr. Voigt, with the positive declaration that the repairing would be undertaken by plaintiff only on the understanding that all the rent would be paid by defendant under the lease. Defendant thereupon, acknowledging receipt of this letter, returned the keys to plaintiff's attorneys, and told them to go ahead with the repairs, and inclosed check for the month's rent which was then past due. The repairs were undertaken at once by plaintiff, and were done in a thorough manner, at an expense to plaintiff of about $2,500. The building was inspected by defendant's architect, and was accepted by him about December 1st, he receiving the keys on behalf of defendant. The building inspectors examined the building in December, and gave a certificate that it was in good condition. Defendant, by Mr. Voigt, took possession of the building, and entered upon extensive improvements, to fit it for a German restaurant. While at this work, his men found it necessary to support certain joists with a truss, and to put in supports. This was not in the part of the building which plaintiff had repaired. Defendant did not notify plaintiff of these defects, nor call upon her to repair them, but Mr. Voigt had them attended to himself, and he paid for these latter repairs. The action was brought by plaintiff to recover five months' rental, under the lease, from September, 1896, to January, 1897, which defendant has refused to pay, and interest thereon. The jury returned a verdict for plaintiff for two months' rent; and the plaintiff, claiming that she is entitled to the five months' rental, asks to review the questions decided against her on the trial.

At the close of the testimony, the court submitted to the jury the following special questions: "(1) Did the plaintiff take such control of the premises, to rebuild the wall and repair the building, as to exclude the defendant thereby from possession during the repair? (2) Were the premises unfit to occupy during such rebuilding and repairs? (3) Were the defects that required curing by rebuilding of the walls and any piers made necessary by the uses or changes of the building during the time that these tenants had control? (4) Did the defendant, during its possession under this lease, remove any columns or partitions, and weaken the building, so as to cause the defects complained of that required repairs?" Questions 1, 2, and 3 were answered by the jury in the affirmative, and question 4 in the negative, and verdict was rendered in favor of plaintiff for $685, which was for two months' rent.

Plaintiff contends: (1) That she was not legally required to make the repairs, and that doing the work she did at defendant's request does not constitute an implied covenant that she would make the repairs, and is no excuse for refusal to pay the rent stipulated. (2) That, admitting plaintiff was bound to make the repairs, defendant must pay the rent stipulated in the lease, provided the repairs were made with reasonable speed and care, and that it is shown this was done. (3) That the repairs were made necessary by the improper use of the building...

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