Appeal
from Circuit Court, Montgomery County; Leon McCord, Judge.
Action
for rent by Carolyn S. Randolph and Lucy B. Randolph against
the Pizitz-Smolian Co-operative Stores, Incorporated. From a
judgment for plaintiffs, defendant appeals.
Corrected
and affirmed.
$2,500
held reasonable attorney's fee for representing
lessor in suit involving two months' rent of $1,366.66
and continuance of lease 24 years.
Pleas 3
to 8, both inclusive, are as follows:
"3.
That the rent sued for is sought to be recovered under and
by virtue of the provisions of a certain lease entered into
by and between the plaintiffs and defendant on to wit
September 8th, 1928, a copy of which lease is attached to
the complaint marked Exhibit 'A.' That the property
described in said lease was rented to the defendant for
occupancy as a retail dry goods store and not otherwise
for and during the term therein specified and this
defendant took possession of said three story building, and
said furniture and fixtures, and the easements referred to
and described in said lease and agreeable to the provisions
of said lease did conduct and carry on a retail dry goods
store in said building until to-wit: July 15th, 1929, at
which time the said building fell or collapsed, without
fault on the part of this defendant, and on account thereof
the said building, furniture and fixtures and the said land
so rented to the defendant was rendered totally unfit for
use as a retail dry goods store, and this defendant was
compelled to and did immediately abandon said property, and
the defendant has offered to pay and tendered to the
plaintiffs the rent for said property at the rate specified
in said lease to the time of the abandonment of said
property by defendant, as aforesaid, and it now tenders to
the plaintiffs the amount of said rent, and brings said sum
into Court,
"Wherefore
defendant says it is not liable, and plaintiffs are not
entitled to recover, except for the rent of said property
from July 1st, 1929, to July 15th, 1929, inclusive.
"4.
That the plaintiffs' demand arises out of a written
contract of lease entered into between the plaintiffs and
the defendant on, to wit: September 8, 1928, a copy of
which is attached to the complaint; and defendant avers
that the three-story building in said lease described was
a store building, having a roof common to it and the
building adjacent thereto on the West, and known as No.
21
on the North side of Dexter Avenue, and which was not owned
by the plaintiffs, and over which they had no control, said
roof having been constructed to serve both buildings; that
said building No. 23 also had with said building known as No.
21, a common back wall, a common front wall, and a common
staircase, and a common second and third floors and ceilings;
that upon the execution of said lease, this defendant entered
into the occupancy thereof, and conducted a large retail dry
goods business, carrying therein a large stock of goods
consisting of dry goods, notions, shoes, millinery, and
ready-to-wear goods, of large value, to-wit: $100,000, and
continued in the operation of said premises and in the
conduct of its said business until, to wit: the 15th day of
July, 1929, when the said building, without fault on the part
of this defendant, collapsed or fell, and together with the
furniture and fixtures therein, were thereby totally
destroyed or rendered wholly incapable of occupancy or use as
a retail dry goods store; that it is expressly provided in
said lease that the land and three-story building, and all
furniture and fixtures therein, known as No.23 on the north
side of Dexter Avenue, were let and leased for occupation as
a retail drygoods store, and not otherwise, for and during
the term therein specified, and plaintiffs therein covenanted
to keep the defendant in the quiet possession of the premises
during said term, provided the defendant should comply with
all the stipulations thereof, and defendant avers that it
promptly paid the rental required to be paid by it under said
lease, when due, up to the 1st day of July, 1929, and that it
has heretofore before the bringing of this suit, tendered to
the plaintiffs and paid into this Court for them, the rental
from the 30th day of June up to the time of the collapse of
said building, at the rate in said lease specified; that upon
the collapse of said building, as aforesaid, this defendant
abandoned said premises, and has not since used or occupied
the same. Wherefore, this defendant says that the
consideration for said lease has failed, or said leased
contract terminated, and that it is not further or otherwise
liable to the plaintiffs in this action.
"5.
That the demand sought to be recovered arises out of the
lease contract, a copy of which it attached to the complaint
and not otherwise, and defendant avers that the consideration
for said lease has wholly failed in this: that on to wit: the
15th day of July, 1929, the said building, without fault on
the part of this defendant, fell or collapsed, and with the
furniture and fixtures therein were destroyed or rendered
wholly unfit and useless for the purposes leased; and
defendant avers that it has heretofore before suit brought,
tendered to the plaintiffs and paid to the Clerk of this
Court the rent for the month of July, 1929, up to the time of
the collapse of said building. Wherefore, defendant says it
is not otherwise or further liable to the plaintiffs in said
cause.
"6.
That the plaintiffs' demand arises out of a written
contract or lease entered into between the plaintiffs and the
defendant on, to wit: the 8th day of September, 1928, a copy
of which is attached to the complaint; and defendant avers
that the three-story building in said lease described was a
store building, having a roof common to it and the building
adjacent thereto on the West, and known as No. 21 on the
North side of Dexter Avenue, and which was not owned by the
plaintiffs, and over which they had no control, said roof
having been constructed to serve both buildings, and being
supported by the West wall of the building adjacent thereto
on the West side and known as No. 21 on the North side of
Dexter Avenue, and the West wall of the building known as No.
25 on the North side of Dexter Avenue, and which was not
owned or controlled by the plaintiffs, which latter building
adjoined the building described in said lease on the East;
that between said building No. 23 described in said lease and
the building adjacent thereto on the West known as No. 21,
there existed an easement in a space of, to wit: 8 or 10
feet, used as a hall with stairways therein common to and
enjoyed by the building leased as aforesaid and the said
building known as No. 21; that upon the execution of said
lease, this defendant entered into the occupancy of said
leased premises and conducted in said building a large retail
drygoods business, carrying therein a large stock of goods
consisting of drygoods, notions, shoes, millinery,
ready-to-wear goods of large value, to wit: Two hundred
Thousand Dollars, and continued in the operation of said
premises and in the conduct of said business until, to wit:
the 15th day of July, 1929, when said building, without fault
on the part of this defendant, collapsed or fell, and
together with the furniture and fixtures therein were thereby
totally destroyed or rendered wholly incapable of occupancy
or use as a retail dry goods store, and the said easements
destroyed and terminated; that it is expressly provided in
said lease that the land and three story building, and all
furniture and fixtures therein, known as No. 23 on the North
side of Dexter Avenue, were let and leased to defendant for
occupation as a retail drygoods store, and not otherwise, for
and during the term in said lease specified, and plaintiffs
herein covenanted to keep the defendant in the quiet
possession of the premises aforesaid during said term
provided the defendant should comply with all the
stipulations of said lease contract; and defendant avers that
it promptly paid the rental required to be paid by it under
said lease when due, up to the 1st day of July, 1929, and
that it has tendered to the plaintiff and paid into this
Court for
them, the rental from the 30th day of June, 1929, up to the
time of the collapse of said building at the rate of rental
in said lease specified and to the time of said collapse, and
defendant performed all the stipulations and conditions of
said lease contract on its part; that upon the collapse of
said building as aforesaid, this defendant was forced to and
did abandon said premises, and has not since used or occupied
the same. Wherefore, this defendant says that it has been
deprived of the use of said premises for the purposes leased,
and that plaintiffs are not entitled to recover of it in this
case, other than the amount tendered.
"7.
For further answer, this defendant adopts the whole of plea
number 6, from the beginning thereof down to the words
'Wherefore, defendant says,' and in addition thereto,
avers:
"That
on, to wit: October 18, 1927, the Board of Commissioners of
the City of Montgomery, Alabama, duly adopted an ordinance
known as the 'Building Code,' which ordinance
became effective on October 18, 1927, and has ever since
been in force and effect; that the ordaining clause and
Part 1 of said ordinance is as follows:
"'The
Mayor and Board of Commissioners of the City of Montgomery
do ordain as follows:
"'Part
1
"'A
Remedial Ordinance.
"'Section
1. This ordinance to be known and cited as the Building
Code.
"'The
following provisions shall constitute and be known as the
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