Talbott v. English

• Decision Date: 08 March 1901
• Parties: TALBOTT et al. v. ENGLISH.
• Court: Indiana Supreme Court

156 Ind. 299

59 N.E. 857

TALBOTT et al.

v.ENGLISH.

Supreme Court of Indiana.

March 8, 1901.

Appeal from superior court, Marion county; J. L. McMasters, Judge.

Action by William E. English against Henry M. Talbott and others. From a judgment in favor of the plaintiff, and from an order denying a new trial, defendants appeal. Affirmed.Elliott, Elliott & Littleton, and Hawkins & Smith, for appellants. Smith, Duncan, Hornbrook & Smith, for appellee.

HADLEY, J.

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 different installments, they differ in amounts and dates. The answers are the same in all cases, namely: (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 10 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 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 theater, 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 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 any agreement that appellants should have the theater 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 theater (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 a part of the same building; that the entrance to the theater, 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 theater and entrance consisted of changing the steam-heating apparatus in the theater, rewiring the theater for electric light purposes, and the building of a new stage entrance from the rear. In the main entrance of the theater changes were made in the wires for electric lighting; the old radiatorsfor 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 entrance and the theater entrance was taken out, and the aperture closed, and a window cut and put in the same wall. Such 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 of the prosecution of the work of alteration and repair of the hotel the employés 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 theater, and at one time some old tiles taken from the hotel floor were piled in the entrance to the theater. 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 was so done with the express consent of the defendants, and a small mortar box was constructed in the entrance by some of the employés of one of the contractors. 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 scarcely would have been practicable to have given any performance in the theater while the entrance was thus incumbered, but at no time was the entrance so incumbered but that a few workmen might have removed it in a 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 day of July. On one occasion he saw an employé of one of the contractors doing some work in the theater 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 theater entrance. Shortly before June 15th, the appellants desired to give a series of entertainments at the English Opera House, but, finding that the theater was not then in a suitable condition, transferred the same to the Grand Opera House, another theater under their control in the city of Indianapolis. No complaint was made by appellants to the appellee, nor to any agent or representative of the latter, of the condition either of the theater, 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 for 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 and given at the Grand Opera House under the management of the defendants, and also a series of performances were advertised for the week beginning September 7th, and running through the week, which were likewise transferred to the Grand Opera House. The entrance to the theater 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 theater, nor did appellee intend by any acts 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. All the work provided for by the several contracts to be done in altering or repairing the hotel could have been done without entering upon the theater or the entrance thereto. 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 theater 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 shall not be entitled to any part of the rent during the...