Richmond Ice Co v. Crystal Ice Co

• Decision Date: 12 February 1901
• Citation: 99 Va. 239,37 S.E. 851
• Parties: RICHMOND ICE CO. v. CRYSTAL ICE CO.
• Court: Virginia Supreme Court

99 Va. 239

37 S.E. 851

RICHMOND ICE CO.

v.CRYSTAL ICE CO.

Supreme Court of Appeals of Virginia.

Feb. 12, 1901.

LANDLORD AND TENANT—DESTRUCTION OF BUILDINGS—COVENANT TO REPAIR—PLEADING—BILLS OF EXCEPTIONS.

1. A plea to an action for rent, setting up the destruction of the buildings, and alleging that "there are not now on the premises buildings of as much value to the tenant for its purposes as the buildings which have been destroyed, " implies a partial destruction only of the buildings, and hence is not a sufficient answer to the whole demand. If the tenant relies on a partial destruction only, he shouldspecify the extent to which the premises have been impaired.

2. A plea to an action for rent, setting up destruction of the buildings leased, which fails to "allege the amount to which defendant is entitled by reason of the matters contained in the plea, " as required by Code 1887, § 3299, is insufficient.

3. A copy of a lease was tiled with the first bill of exceptions. The lease was necessary evidence, every ruling of the court being based on its construction, and no additional evidence could have rendered it inadmissible. Held, that a subsequent bill of exceptions, identifying the lease, sufficiently referred to it without setting out its terms.

4. A covenant in a lease to keep the buildings in repair, followed by a clause, separated from it only by a semicolon, that the tenant should replace all glass broken, and repair damage from bursting pipes, applies only to the repairs enumerated, and not to a destruction of the property.

5. In an action for rent, it is error to exclude defendant's evidence to prove the destruction of the buildings (Code, § 2455), exonerating a lessee from paying rent, where the premises are destroyed without his fault.

Appeal from circuit court of city of Richmond.

Action by the Richmond Ice Company against the Crystal Ice Company. Prom a judgment for plaintiff, defendant appeals. Reversed.

S. S. P. Patteson, for plaintiff in error.

Leake & Carter, for defendant in error.

HARRISON, J. This action of debt was brought to recover $1,000, it being, as alleged in the declaration, 10 months' rent due under a demise for a term of 10 years. The defendant pleaded nil debet, and offered the following special plea: "And the said defendant, by its attorney, comes and says that the lease in the declaration is in writing, a copy of which is herewith filed, and that heretofore, to wit, on the 18th day of February, 1899, after leasing of the premises in the declaration mentioned, the buildings thereon were destroyed, without fault or negligence on its part, by the action of the ice or ice gorge in James river, on which the same were situated, and there are not now, and have not been since said last-mentioned date, upon the premises, buildings of as much value to the tenant for its purposes as those buildings which have been so destroyed; and, by reason of such destruction of said buildings, the said defendant is not bound, by any covenant or promise in said lease contained, to pay the rent; of which destruction of the buildings, and the refusal of the defendant to pay any further rent until the said buildings are rebuilt, the plaintiff had due notice, according to the form of the statute in such cases made and provided." The action of the court in rejecting this plea is made the subject of the first bill of exceptions.

This plea professes to be an answer to the whole demand made by the plaintiff, and yet it alleges that there are not now upon the premises buildings of as much value to the tenant for its purposes as the buildings which have been destroyed; thereby implying, if not asserting, a partial destruction only of the buildings.

Every pleading must be an answer either to the whole of what is adversely alleged or to such part thereof as it is proposed to cover. If, therefore, the defendant means to insist on a partial destruction of the buildings upon the leased premises, the plea should be framed accordingly. The defendant, by its plea, practically admits that the buildings are of some value, and yet the plea asserts that it is not bound to pay any rent, whereas, if there has been only a partial destruction, the plaintiff would be entitled to an apportionment of the rent according to the fact. Hence the necessity for the plea, specifying the extent to which the leased premises have been impaired. 4 Minor, Inst. pt. 1, p. 784; Hunt's Adm'r v. Martin's Adm'r, 8 Grat 578.

It may be further added that the statute under which this plea is filed provides that, when a defense like this is made, the special plea must allege the amount to which the defendant is entitled by reason of the matters contained in the plea. Code 1887, § 3299; Tyson v. Williamson, 96 Va. 636, 32 S. E. 42. It follows from what has been said that the plea under consideration was bad, and therefore properly rejected.

It appears from the second bill of exceptions that the defendant, to maintain the issue on its part, introduced certain witnesses to prove the destruction of the buildings and wharf on the leased premises by the ice gorge, and that, on motion of the plaintiff, this evidence was rejected. This action of the court is assigned as error. It is contended that this bill of exceptions does not refer to the lease or its contents, except to say that the plaintiff had "introduced the contract of lease dated the 8th day of June, 1895, " and that unless it is made to appear from the bill of exceptions that, under the terms of the lease, the defendant was relieved from the payment of rent if the buildings were destroyed, such evidence was improper. And in this connection it is further contended that as this bill of exceptions does not refer to the first bill of exceptions, with which the lease was filed, the latter cannot be looked to for the purpose of ascertaining the terms of the lease.

The general rule is that one bill of exceptions cannot be looked to in order to supply an omission in another unless one bill refers to the other. 4 Minor, Inst. pt. 1, p. 916, and cases there cited....