Senter v. Dixie Motor Coach Corporation
| Decision Date | 26 November 1933 |
| Docket Number | No. 11360.,11360. |
| Parties | SENTER v. DIXIE MOTOR COACH CORPORATION.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Towne Young, Judge.
Suit by E. G. Senter, Jr., against the Dixie Motor Coach Corporation. From a judgment for defendant, plaintiff appeals.
Affirmed.
E. G. Senter, Sr., of Dallas, for appellant.
Raymond E. Buck, of Fort Worth, and Seay, Malone & Lipscomb, of Dallas, for appellee.
Appellant, E. G. Senter, Jr., brought this suit against appellee, Dixie Motor Coach Corporation, upon a written contract, leasing a one-story brick building, situated in the city of Dallas, "to be occupied as a garage and motor bus depot and not otherwise," for a term of five years, from January 1, 1929, to December 31, 1933, at a stated rental of $180 per month, payable in advance. The lease provides that "the lessee shall, in case of fire, give immediate notice to the lessor, who shall thereupon cause the damages to be repaired forthwith, but if the premises be by the lessor deemed so damaged as to be unfit for occupancy, or if the lessor shall decide to rebuild or remodel said building, the lease shall cease and the rent be paid to the time of the fire."
Appellant went to trial on pleadings fully disclosing the contractual relationship of the parties, the fire, and extent of damages, and alleged that immediately after the fire he advised appellee that "he deemed the property suitable for occupancy and would forthwith repair the premises in as good condition as before the fire within a few days." Appellant further alleged that appellee refused the offer to repair, and, as evidence of such refusal, by letter gave him formal notice that the premises were destroyed, quoted the fire clause of the lease contract, advised him that it deemed the lease terminated, and requested a return of the unearned rental for the remainder of the month of April, 1930. Appellant further alleged that the fire clause of the contract does not authorize cancellation by appellee, and its attempt to do so is in contravention of its terms and would not be recognized by appellant. Thus, from an analysis of the petition, it appears that appellant raises a controversy over appellee's construction of the contract and the extent of the fire, being an anticipatory renunciation or breach by appellee, and, at the same time, refuses to accept it as such, elects to perform the repair covenant and hold appellee to a strict compliance with the terms of the contract.
Appellee urged two principal defenses to the cause of action: (1) It pleaded the fire clause of the lease, and alleged that said premises were so damaged by fire as to be wholly unfit for occupancy and were in such condition as a result thereof that it could not be restored to a fit condition by ordinary repairs, such as could be made without unreasonable interruption of appellee's business, and that appellant had unreasonably and arbitrarily declined to consider said lease terminated; and that (2) if appellant intended to enforce the terms of the lease, it was his duty to immediately after the fire begin work on said premises and forthwith to restore same to its original condition and to make diligent effort to rent same to a suitable tenant; that for a period of more than eleven months, from the date of the fire to the date of trial of this cause, no effort has been made to restore the premises to a condition where appellee could use same for the purposes stipulated in the covenant.
At the close of the evidence, the trial court instructed a verdict in favor of appellee and against appellant; hence this appeal.
The undisputed facts leave no room for a question of fact to be submitted to the jury. The extent of the damage is itself the controlling factor in a correct determination of the law question presented on this appeal, its application, and the application of the quoted fire clause. There is no material difference between appellant and appellee as to the facts concerning the fire, the extent of the damage, and the necessary repairs. The subject-matter of the lease was damaged; the entire roof was destroyed, the north wall burned completely out, all of the posts supporting the roof and the trusses, rafters, and all wooden portions of the building, and the electrical wiring were burned, and in the three remaining walls sections of brick were completely knocked out and the walls cracked and broken. The only unscathed portion of the building was the cement floor. The necessary repairs were to build one entirely new wall, restore the damage done to the other three walls, put in new center posts, a new metal lathe, and plastered ceiling, install a new roof, and completely rewire the building. Certainly the premises were rendered unfit for the purposes for which appellee leased it, and it could not be restored by ordinary repairs, and, in our opinion, the fire created a condition necessitating the reconstruction or remodeling of the building.
We do not assent to appellant's proposition that the stipulation in the executory contract that the right to terminate is applicable only to the lessor. It is for the benefit of the lessor and the lessee. Every contract must be given a reasonable construction. 10 C. J. 315. It is not reasonable to suppose that appellant may deem a building fit for occupancy when, in fact, it is not, or declare a reconstruction or remodeling of the building a repair job. The contract bears no such construction. The terms of the contract impose an obligation on the lessor on notice by the lessee "to cause damages to be repaired forthwith," and relieve him of the duty to rebuild or remodel where the damages are such that the premises are unfit for occupancy. If the building was suitable for occupancy for the purpose for which it was leased, then the lessor could not deem it unfit for occupancy by taking advantage of the word "deemed" in the contract. Land v. Johnson (Tex. Civ. App.) 189 S. W. 337. Nor could the lessor arbitrarily deem the premises fit for occupancy when in fact the same was unfit for occupancy. It is a settled rule of law that the destruction of a building being so complete that same could not be used for the purposes for which it was leased renders such premises unfit for occupancy. As stated in the case of Wolff v. Turner, 6 Ga. App. 366, 65 S. E. 41, "The premises become `untenantable,' so as to authorize the tenant to quit the premises and cease paying rent, when as a result of fire the building is damaged to such an extent that it is unfit for carrying on the business * * * and cannot be restored to a fit condition by ordinary repairs, such as can be made without unreasonable interruption of the business of the tenant."
It is apparent from the contract that the parties' obligations are based on the continued existence of the subject-matter of the contract, a brick building and not the land, suitable for occupancy of a garage and motor-bus terminal. Thus, where the contract relates to the specific thing, the condition is implied by law that the impossibility arising from destruction, so as to unfit it for the purposes intended by the parties, excuse the performance, and the mere fact that the contract in terms imposes the determinative fact for the cessation of the contract on one of the contracting parties, to the exclusion of the other, does not authorize an arbitrary and unreasonable decision.
The contracting parties in advance undertook to control a situation of this sort. The fire clause of the lease clearly provides for such situations, viz.: (1) If the premises were not in fact rendered unfit for occupancy, but were merely partially damaged, then the lessor could repair forthwith and the lease continue; (2) if the premises were damaged to such an extent that the lessor, in good faith, deemed them unfit for occupancy, he could so declare and terminate the lease; and (3) if the premises were so damaged as to necessitate a...
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