Saylor v. Strasburger

• Decision Date: 10 November 1923
• Docket Number: 23,808
• Citation: 114 Kan. 493,220 P. 193
• Parties: J. W. SAYLOR, Appellant, v. J. E. BROOKS and H. STRASBURGER, Appellees
• Court: Kansas Supreme Court

220 P. 193

114 Kan. 493

J. W. SAYLOR, Appellant, v. J. E. BROOKS and H. STRASBURGER, Appellees

No. 23,808

Supreme Court of Kansas

November 10, 1923

Decided July, 1923.

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

LEASE--Landlord to Keep Premises in "Good Repair"--Premises Destroyed by Fire--Landlord Not Obligated to Rebuild. An agreement in a lease covering the basement and first story of a two-story building that the landlord is to keep it in good repair does not obligate him to restore it in case of its destruction by fire without his fault.

E. L Burton, and Paul H. MacCaskill, both of Parsons, for the appellant.

W. S. Hyatt, Carl V. Rice, and W. D. Atkinson, all of Parsons, for the appellees.

OPINION

MASON, J.:

J. E. Brooks owned a two-story concrete building. He leased the first floor and basement for a period expiring March 1, 1923, to J. W. Saylor. The building was destroyed by fire December 28, 1918. The lease contained an agreement on the part of the landlord that the building was to be "kept in good repair." After the fire Saylor demanded that Brooks rebuild it, and upon his refusal brought this action to recover damages. H. Strasburger was joined as a defendant because of his having bought the lot on which the building had stood. Judgment was rendered in favor of the defendants and the plaintiff appeals.

The question presented is whether an agreement to keep in repair made by the landlord in a lease covering a part of a building requires him to restore it where, without his fault, it is entirely destroyed by fire. The law with respect to the liability of the lessee under a similar agreement on his part has been thus stated:

"According to the common-law rule, which has been followed generally in this country, a covenant on the part of the lessee to repair or keep in good repair imposes on him an obligation to rebuild the demised premises if they are destroyed during the term by fire or other casualty, even where he is without fault. . . . Now, however, in some jurisdictions, by statutory enactment or judicial construction, no covenant or promise by a lessee to keep and leave the demised premises in good repair will require him to rebuild if the premises are destroyed by fire or other casualty, without fault or negligence on his part, unless the language of the lease shows plainly that it was the intention of the parties that he should be so bound." (24 Cyc. 1089, 1090.)

In a number of the American cases cited in support of the first sentence of the text quoted the agreement to repair involved was that of the lessor instead of the lessee (Reno v. Mendenhall, 58 Ill.App. 87; Cordes v. Miller, 39 Mich. 581, which moreover is not a "repair" case; Allen v. Culver, 3 Den. [N.Y.] 284; Electric Railway v. Electric Light Co., 200 Pa. 372, 49 A. 952), and generally the agreement to repair is given the same interpretation by whichever party made. Upon the strength of two Massachusetts cases ( Flynn v. Trask, 11 Allen 550; Leavitt v. Fletcher, 10 Allen 119) it is said in another textbook: "When a landlord expressly covenants to repair . . . his obligation extends to the rebuilding of the premises in case of their destruction by fire." (1 Taylor's Landlord and Tenant, § 330.) Another contains this statement, the cases in support of which, whoever, are affected by other considerations, such as more specific expressions in the lease: "Where a landlord's covenant to make repairs is general and unqualified it has usually been held to impose on him the duty to rebuild the premises." (16 R. C. L. 1051.)

The theory upon which an agreement to repair, or to keep in repair, is held to include an obligation to replace in the event the property leased is destroyed, is like that under which the lessee's agreement to pay rent is held to bind him for such payment even after the destruction of a building, the reasoning being that if an exception on that account had been intended the lease would have said so. The common-law rule holding the tenant to the payment of rent after that which makes the contract of value to him has ceased to exist is criticised in an often-cited opinion written by Mr. Justice Brewer, in a case which was decided upon another phase. (Whitaker v. Hawley, 25 Kan. 674.) That rule, while generally followed, has been repudiated in a case in which the matter is extensively discussed holding definitely that a tenant who covenants to keep the leased premises in repair is not required to restore a building destroyed without his fault. In the opinion it was said:

"What did the parties to this contract understand and intend by the terms 'repair' and 'keep in repair'? These words, 'repair' and 'keep in repair,' are not technical words, nor should they be given a technical or strained interpretation. They should receive their ordinary interpretation. To repair, as it is ordinarily used, means to amend, not to make a new thing, but to refit, to make good or restore an existing thing [citing case]. When we speak of repairing a thing, the very expression presupposes something in existence to be repaired. If a carpenter contracts to repair a house, or a mason a chimney the ordinary construction of these contracts would not be that these parties had agreed to build a new house or a...