Schimmelfennig v. Grove Farm Co.

• Decision Date: 11 July 1955
• Docket Number: NO. 2922.,2922.
• Citation: 41 Haw. 124
• Parties: CARL E. SCHIMMELFENNIG v. GROVE FARM COMPANY, LIMITED.
• Court: Hawaii Supreme Court

41 Haw. 124

CARL E. SCHIMMELFENNIG

v.GROVE FARM COMPANY, LIMITED.

NO. 2922.

Supreme Court of the Territory of Hawai‘i.

Argued October 22, 1954.

Reargued June 16, 1955.

Decided July 11, 1955.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT FIFTH CIRCUIT, HON. P. L. RICE, JUDGE.

Syllabus by the Court

Independent of express covenant, a lessee is obligated to return leased premises at the termination of a tenancy in substantially the same condition as at the inception of a lease, subject to reasonable use. This obligation is created by implication of law.

Section 10421, Revised Laws of Hawaii 1945, establishing a six year limitation upon actions for the recovery of a debt founded upon any contract, obligation or liability, is applicable to an action to recover upon an implied covenant to return leased premises at the termination of a lease in substantially the same condition as at its inception, subject to reasonable use.

A right of action for breach of an implied covenant to deliver up leased premises at the termination of a lease in a reasonable condition relates to the future and accrues only upon expiration of the term recited.

The statute of limitations governing a right of action for breach of an implied covenant to deliver up leased premises at the termination of a lease in a reasonable condition commences to run from the date of expiration of the term recited.

The execution of a new lease upon the same property neither dissolves nor does it constitute a bar to a cause of action which has accrued under the original lease for breach of an implied covenant to return leased premises at the termination of a lease in a reasonable condition. The period of the statute of limitations once having commenced, continues uninterruptedly over all subsequent disabilities and intermediate acts and events not within the saving of the statute; nor is the period tolled by a holding over of the premises which is not expressly or impliedly consented to by the lessor.

In the absence of express provision, the general rule is that a lessee is under no obligation to repair or maintain any portion of leased premises which has been reserved to others, including the lessor, and over which he exercises no authority or control.

When a lease contains an express covenant which is undisputed, no implied covenant to repair or maintain that portion of the premises excluded from the authority or control of the lessee is created by operation of law.

An implied covenant to deliver up leased premises at the termination of a lease in a reasonable condition ceases to run with the land after being breached by the tenant, and the transferee of the reversion may not recover for such breach committed prior to the transfer of such reversion. The right of action for the breach becomes a chose in action inuring to the benefit of the transferor of the reversion. The cause of action as such for a breach committed prior to the transfer of the reversion does not pass to the transferee in the absence of an express assignment thereof.

D. N. Ingman ( W. C. Ingman with him on the briefs), for plaintiff-appellant.

C. E. Cassidy ( Pratt, Tavares and Cassidy) on the brief, for defendant-appellee.

TOWSE, C. J., STAINBACK, J., AND CIRCUIT JUDGE MCKINLEY IN PLACE OF RICE, J., DISQUALIFIED.

OPINION OF THE COURT BY TOWSE, C. J.

This is an appeal from a judgment granting a motion for nonsuit in an action for breach of implied covenant to restore leased premises in substantially the same condition as at the inception of the lease.

Facts pertinent to the disposition of the issues establish that one John D. Neal leased a parcel of land and improvements in Koloa on the island of Kauai, “consisting of taro, kula and house lot” and containing approximately 3.07 acres to Koloa Sugar Company, Limited, for a term of twenty years from September 1, 1901. Neal died in 1902, and his daughter, Rebecca Schimmelfennig, thereafter acquired the interests of her brothers and sisters and became the owner in fee of the parcel by deed dated May 24, 1910.

The lessee occupied and remained in possession of the premises after expiration of the original twenty-year lease on August 31, 1921. A second lease containing covenants identical with those of the original lease except for terms of rental and duration, was executed between Koloa Sugar Company, Limited and Mrs. Schimmelfennig on November 12, 1921, for a term of five years commencing on September 1, 1921. Upon expiration of the second lease on August 31, 1926, a total of eight successive leases each with identical covenants except for terms of rental and duration were thereafter executed between the parties. The fifth, sixth, seventh, eighth and ninth leases contained a recital that the lessee had held the demised premises from the commencement dates enumerated in each of the successive leases “in accordance with the provisions hereof and upon the understanding that this indenture of lease would be executed accordingly.”

The tenth and final lease extended the ninth lease for a period two years from September 1, 1946 to August 31, 1948, “at the same annual rent and subject to all of the terms, covenants and conditions therein contained.” Prior to the execution of each lease a lapse transpired between the expiration date of the prior lease and the execution of the succeeding lease. Koloa Sugar Company, Limited, the original lessee, continuously occupied and remained in possession of the leased premises until its merger on June 30, 1948 with Grove Farm Company, Limited, the defendant-appellee herein. Grove Farm Company, Limited, thereupon, and as the successor in interest of the Koloa Sugar Company, Limited, occupied and remained in possession of the premises until August 31, 1949, holding over for a period of one year beyond the expiration date of the final lease of its predecessor lessee. By deed dated November 30, 1948, Mrs. Rebecca Schimmelfennig, the lessor, conveyed the leased premises to her son, Carl E. Schimmelfennig, plaintiff-appellant herein, who accepted rental for the one-year holdover period.

Complaint was filed in the circuit court of the first circuit on October 18, 1950, and subsequently amended on April 6, 1951. The amended complaint upon which issue was joined, after reciting the facts hereinabove detailed, alleged that “on June 7, 1901 there were on said premises a two-story frame building, a two-bedroom frame house and a three-bedroom frame house; that there were on June 7, 1901 a stone wall around said premises and a picket fence around a graveyard on said premises; that during the life of said lease as renewed, extended and held over, Defendant's assignor and subroger, Koloa Sugar Company, caused said buildings and stone wall to be removed and allowed its cattle to damage said picket fence * * *;” “that there was a covenant on the part of the lessee not to make or suffer waste, and a covenant that at the expiration of the lease it would quietly and peaceably deliver up the premises to the lessor; that the Defendant is obligated to restore said premises to substantially the same condition that they were in at the beginning of said lease of 1901 under the covenant implied by law in such cases;” and although demands were made upon defendant-appellee for restoration both prior to and after vacation of the premises on August 31, 1949, “said buildings and stone wall have not been restored and said picket fence around the graveyard still remains in a state of disrepair.”

Plaintiff-appellant, it would thus appear, elected to proceed upon the theory of an implied covenant to restore the premises in substantially the same condition as at the inception of the lease, subject to ordinary use, and sought damages of $4,700.00 for buildings, $3,906.00 for the stone wall, and $125.00 for the fence.

Defendant-appellee demurred to the amended complaint on the grounds, among others, that “the allegations of said amended complaint are so indefinite, vague and ambiguous it is impossible to ascertain therefrom with any degree of reasonable certainty when or approximately when the purported cause or causes of action thereof accrued to plaintiff or either of his predecessors in title”; and that “it fails to state the time or period or the approximate time or period when or within which Koloa Sugar Company, Limited, committed the acts of waste upon which the alleged cause or causes of action in such amended complaint set forth are purported to be founded.”

The demurrer was overruled. Defendant-appellee thereupon pleaded the statute of limitations in that the action “was not commenced within six years after the cause of action accrued and that said cause of action or causes of action and each of them are therefore barred by the applicable Statute of Limitations, to wit, Section 10421, Revised Laws of Hawaii 1945.” Upon the granting of a motion for change of venue, the cause was removed to the circuit court of the fifth circuit, where trial by jury was commenced upon the issues so joined.

At the close of plaintiff-appellant's evidence, defendant-appellee moved for a nonsuit upon the grounds:

“* * * That under the evidence in the case, it definitely appears that any cause of action, or causes of action, set out in the complaint are barred by the applicable statute of limitations.

“* * * That it appears from the evidence in the case that the breach, or breaches, of implied covenant upon which the action is predicated occurred prior to the transfer of the property to the plaintiff in this case, and consequently even assuming that there had previously existed a cause of action therefor, that the plaintiff does not have that cause of action. In other words, that the breaches having occurred prior to the transfer, they cease to run with the land and have not vested in this plaintiff.”

The motion was granted upon both grounds; judgment of nonsuit entered in favor of defendant-appellee; and plaintiff-appellant's amended complaint dismissed. Plaintiff-appell...