Talbott v. English
| Decision Date | 08 March 1901 |
| Docket Number | 18,880 |
| Citation | 59 N.E. 857,156 Ind. 299 |
| Parties | Talbott et al. v. English |
| Court | Indiana Supreme Court |
From the Marion Superior Court.
Affirmed.
B. K Elliott, W. F. Elliott, F. L. Littleton, R. O. Hawkins and H E. Smith, for appellants.
C. W Smith, J. S. Duncan, H. H. Hornbrook and A. N. Smith, for appellee.
Six several actions were brought by the appellee against the appellants to recover the rent for the premises known as "English's Opera House." The complaints in the several actions are founded on the same written lease and are in all respects the same, except as they were for different installments they differ in amounts and dates. The answers are the same in all the cases, viz.: (1) The general denial; (2) eviction by the plaintiff; (3) damages for plaintiff's refusal to renew the lease and set-off; (4) set-off for money expended in the erection of a new stage, and (5) payment. The cases were consolidated and tried together. The court made a special finding of facts and stated five conclusions of law, to four of which appellants excepted, and to one of which appellee excepted. The court gave judgment for appellee in five of the causes, and for appellants for their costs in the other. Errors are assigned by appellants upon their exceptions to the conclusions of law, to the ruling denying them a new trial and to the overruling of their motion for a venire de novo. Cross-error is assigned by appellee upon his exception to the fifth conclusion of law.
The principal contentions arise upon the issues of eviction and payment. The material facts disclosed by the special findings are that on August 21, 1893, William H. English, now deceased, by the writing sued on, leased to appellants his opera house in Indianapolis for a term of three years from June 1, 1894, for $ 6,250 per annum, payable in ten equal installments of $ 625 each month until fully paid, beginning August 1st of each year. Appellee succeeded to the ownership of the opera house and hotel, being parts of the same building, on March 23, 1896, subject to the unexpired term of appellants' lease upon the opera house, and was entitled to the rents accruing after said date.
Relating to the third paragraph of answer the facts are: Soon after appellee became the owner of the opera house the parties expressed to each other satisfaction in their business relations with respect to the theatre, and mutually expressed a willingness to extend the lease for another period of years upon its expiration, if terms could be agreed upon. Negotiations for a renewal of the lease continued through the summer by further conversations and correspondence, and closed in September, 1896, without any agreement for a renewal of the lease having been made. With respect to the answer of set-off for money expended in the construction of a new stage, in the spring of 1896, it was agreed between the parties that appellee should furnish the lumber and the appellants the labor for the rebuilding of the stage, and in pursuance of which agreement appellee did furnish the lumber and appellants the labor, and the stage was reconstructed under said special agreement, and not under an agreement that appellants should have the theatre for a further term. Upon the issue of eviction the facts are that in the latter part of May, 1896, appellee entered into written contracts with carpenters, plumbers, marble workers, and layers of mosaic tiling, to make alterations and repairs, a substantial part of which was to be done in the theatre (which right of the landlord to make alterations and repairs is expressly stipulated in the lease), but the greater portion of them were in and for the benefit of the English hotel, owned by appellee and part of the same building; that the entrance to the theatre, being a part of the leased premises, is adjacent to the entrance and lobby of the hotel, and separated therefrom only by a wall through which openings for doors existed and in which doors were hung; the terms of these contracts made each of the contractors an independent contractor. The work done in the theatre and entrance consisted of changing the steam heating apparatus in the theatre, rewiring the theatre for electric lighting, and the building of a new stage entrance from the rear. In the main entrance of the theatre changes were made in the wires for electric lighting; the old radiators for supplying heat were removed, and new radiators put in; the box office was changed from the east to the west side of the entrance; one of the doors between the hotel lobby and the theatre entrance was taken out and the aperture closed, and a window cut and put in the same wall; the changes in the entrance and removal of the box-office were made with the consent and approval of the appellants; the changing of the wiring for electricity was done upon the requirements of the board of underwriters in the city of Indianapolis to lessen the risk of fire; some of the contractors began work about the 1st of June, another about the 17th of June, and another about the 30th of July, and the work continued to about the 14th of September; from an early period in the prosecution of the work of alteration and repair of the hotel the employes of the several contractors engaged in the work did at different times, and sometimes to a very considerable extent, deposit building material in the entrance to the theatre, and at one time some old tiles taken from the hotel floor were piled in the entrance to the theatre; the old radiators in the entrance were disconnected from the system of heating and allowed to stand in their old position until the new radiators were brought and substituted for them; at one time a steam heating table was brought into the entrance from the hotel and was allowed to remain there for some time, but it was so done with the express consent of the defendants; and a small mortar box was constructed in the entrance by some of the employes of one of the contractors; that the amount of building material and other matter thus placed in the entrance would greatly hinder the passage of persons through such entrance, and it would scarcely have been practicable to have given any performance in the theatre while the entrance was thus encumbered, but at no time was the entrance so encumbered but that a few workmen might have removed it in one day or less. Appellee was in the city and living in the hotel from the time of entering into said contracts until about the 24th of July; that on one occasion he saw an employe of one of the contractors doing some work in the theatre entrance, to be used in the hotel, and notified him it could not be done there, and it was promptly removed. At another time he found and ordered buckets used by the workmen removed from the theatre entrance. Shortly before June 15th, the appellants desired to give a series of entertainments at the English Opera House, but finding that the theatre was not then in a suitable condition transferred the same to the Grand Opera House, another theatre under their control in the city of Indianapolis; that no complaint was made by appellants to the appellee, nor to any agent or representative of the latter of the condition either of the theatre or the entrance thereto until November 5th, although appellee, or his general agent, or his architect in charge of the work under said contracts, was at all times in the city and living at the hotel. On August 1, 1896, appellants transmitted by mail to appellee a check for $ 625, being the installment of rent that day falling due, without any statement or complaint. The last performance before the end of the season of 1895 and 1896 was given on the 19th day of May, 1896, and at that time the house was not engaged for any other performance before the 1st of September; an engagement was advertised for the night of August 4th, but the same was transferred to and given at the Grand Opera House under the management of the defendants, and also a series of performances was advertised for the week beginning September 7th and running through the week and which were likewise transferred to the Grand Opera House. The entrance to the theatre was cleared out and the sides repapered on or prior to September 14, 1896, and from that date till the end of the lease the appellants gave the usual performances therein; the installments of rent falling due on the 1st of September and October, respectively, were not paid. Neither appellee nor any person acting by his authority ever authorized any contractor or other person to deposit any building material or other substance used in the alteration or repairs of the hotel in the entrance of the theatre, nor did appellee intend by any act of his to interfere with appellants' possession and enjoyment, except so far as they were consented to by appellants or authorized by the terms of the lease; that all the work provided for by the several contracts to be done in altering or repairing the hotel could have been done without any entry upon the theatre or the entrance thereto; that there was no eviction of the defendants by the appellee from said premises, or any part thereof.
The first question presented is whether these facts constitute such an eviction as released appellants from the payment of rent during the period the theatre and hotel were undergoing alterations and repairs. It may be said that in every lease there is an implied covenant that the tenant shall have the right of possession, occupancy, and beneficial use of every portion of the leased premises. The tenant is regarded as having hired the use of the property as an entirety, and therefore, if the landlord, after the grant, deprives the tenant of the possession and enjoyment of any part of the premises, the landlord...
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