Taylor v. Hart

• Decision Date: 28 October 1895
• Citation: 18 So. 546,73 Miss. 22
• Court: Mississippi Supreme Court
• Parties: C. M. TAYLOR v. JOHN HART

18 So. 546

73 Miss. 22

C. M. TAYLOR v. JOHN HART

Supreme Court of Mississippi

October 28, 1895

FROM the circuit court of Yazoo county, HON. J. B. CHRISMAN Judge.

In December, 1892, appellant leased to appellee her plantation in Yazoo county by the following instrument:

"STATE OF MISSISSIPPI, Yazoo county.

I have leased to John Hart, and his representatives, the land situate in said county, known as the Gum Spring Plantation from the first day of January, 1893, to the first day of January, 1896, yielding therefor, during the said term, the rent of eleven hundred and fifty dollars per year, payable on the fifteenth day of November in each year during said term. Said lessee is to keep ditches open and banks cleaned, fences up, and the place in good repair, allowing for wear from use he shall cut no cypress timber except for use on said premises; he shall return the ginhouse machinery, gin stand and press at the end of his term in as good condition as when received by him, and if said machinery, stand and press shall be injured, damaged or destroyed by the negligence or fault of said lessee, or those in his employ, said lessee shall be liable for the value thereof. . .

"Witness my hand, this twenty-second day of December, 1892.

C. M TAYLOR."

The appellee went into possession, and in February, 1893, the ginhouse, with its appurtenances, was destroyed by fire without fault or negligence on his part. He remained in possession, however, and paid rent for that year. On November 19, 1894, there being unpaid a balance on account of rent for that year of $ 350, appellant distrained therefor, and seized twenty bales of cotton. The appellee replevied the cotton, and to appellant's avowry filed three replications besides the general issue. The third replication was held bad on demurrer, but appellant's demurrers to the second and fourth were overruled. The second replication sets tip the lease under which appellee held, and avers that the ginhouse and its fixtures constituted a material part of the property leased, and that the rental value of the same was $ 350 per year; that the same were, at the time stated, wholly distroyed by fire without fault or negligence on his part; that he had not expressly stipulated to pay rent therefor in such case; and that he was therefore not bound for the amount mentioned in plaintiff's avowry. The grounds of demurrer to this replication were that it disclosed no right to any abatement of rent on account of the destruction of the ginhouse, and that the lease, which was filed with the replication, affirmatively showed that no rent was to be paid for the ginhouse, which was only appurtenant and incident to the land, the real subject-matter of the lease.

The fourth replication set up that, in January, 1894, appellant contracted with appellee to furnish the means to replace the ginhouse, repair the boiler, and put in new machinery, in consideration of his not giving up his lease, and provided appellee would do the work involved in such restoration; that, relying upon this promise and undertaking, appellee agreed not to cancel his lease, and continued the same, and was ready and willing to perform the work aforesaid, at the time agreed upon, but the appellant refused and neglected to do as she had promised, whereby the appellant sustained a loss to the amount of $ 350, which he was entitled to recoup, etc. To this replication appellant demurred on the ground that the contract set up therein was without consideration and void. Both demurrers being overruled, issue was joined on the replications.

W. S. Taylor, the husband of appellant, who had the management and control of her plantation in the transaction with appellee, testified that the appellee paid the rent of 1893 without objection, and deposed to facts indicating that appellee was dilatory in making, and uncertain of his right to make, any claim for a reduction of rent on account of the destruction of the ginhouse, and that the ginhouse was not considered in computing and fixing the amount of rent for which the place was leased, the rent agreed upon being attributable to the land alone, and that appellee made no offer to surrender the place.

In his own behalf the appellee testified, over appellant's objection, that he would not have rented the land had there been no ginhouse on it; that the annual rental value of the ginhouse and appurtenances was $ 350, if not more, and showed the profits derived from ginning the cotton produced on the plantation and also that received from other places, and the expense to which he was put in having to haul the cotton elsewhere to be ginned. He further testified that he paid the rent of 1893 without objection, because the Bank of Yazoo City held the note given for the rent of that year, and, having informed this assignee of the note, on inquiry made of him before the fire occurred, that he had no counter claim or set-off, he regarded himself as bound to pay the money to the bank; that, early in the year 1894, he called on W. S. Taylor to rebuild the ginhouse or reduce the rent, and offered to surrender the place; that at first Taylor declined to do either, but finally promised to rebuild during the summer, which promise he wholly failed to keep. The appellee also testified in support of the matters of fact set up in his fourth replication, W. S. Taylor denying in rebuttal, however, that any such transaction as that set out in the replication ever took place. Montgomery and Wilburn, witnesses for plaintiff, testified that the difference in value of the place with and without the ginhouse was $ 350.

The following instruction was given.

1. "The court instructs for Hart that, if they believe from the evidence that the ginhouse on the leased premises was burned without fault or negligence on the part of Hart, and that it constituted a part of the consideration agreed by the defendant to be paid for its rent, then he is entitled to a deduction in proportion to the loss sustained by him on account of the destruction of the ginhouse, its necessary and proper appurtenances. In arriving at a proper measure of damages, they may consider as a factor what the gin would add to the value of the lease in 1894, and deduct that amount from the rent agreed to be paid for that year."

The following instructions for the defendant were given:

"(1) If the jury find for the plaintiff, they cannot allow him more than the actual damage he sustained by the burning of the gin. (2) They cannot allow plaintiff any profits which he might have made on the ginning of cotton not produced on the leased premises.

The court refused to give a peremptory instruction for the defendant, and its action in this respect, and in granting the first instruction asked by plaintiff, in admitting improper testimony over defendant's objection, and in overruling defendant's demurrer to plaintiff's second and fourth replications, is assigned for error. Verdict and judgment in favor of defendant for seventy-five dollars. Defendant appeals. The opinion contains a further statement of the case.

Affirmed.

Barnett & Thompson, for appellant.

1. At common law, where land and buildings were leased together, the land only was the subject-matter of the lease, and, for this reason, the destruction of the buildings did not relieve the tenant from the payment of rent. Lanpher v. Glenn, 33 N.W. 10; note to McMillan v. Solomon, 94 Am. Dec., 662; Graves v. Berdan, 26 N.Y. 496; S. P. Warren v. Wagner, 75 Ala. 188; 51 Am. Rep., 446. Being in derogation of the common law, § 2498, code 1892, should not be enlarged by construction.

2. Section 2498, code 1892, does not apply to a case where the destroyed building is neither the subject-matter of the lease nor the essential thing which gives the lease its value, and for the use of which the rent is paid. A plantation ginhouse is not within the statute, nothing to the contrary appearing in the lease. Gates v. Green, 4 Paige Ch., 355; 27 Am. Dec., 68; Doe, ex dem., v. Burt, 1 Term Rep., 710; Coogan v. Parker, 16 Am. Rep., 680.

3. The statute in question does not support the action, for the gin was at most but a part of the subject-matter, and its destruction was not the destruction of the whole, and the statute only relieves in cases of entire destruction, and in no way provides for abatement on account of partial damage only. Unlike our statute, those of other states, notably New York, Ohio, Minnesota, New Jersey and Connecticut, make provision for partial injury, but even under them it is not allowable for the tenant to retain possession and at the same time demand an abatement in rent. Under them, he must elect either to abandon his term wholly or retain it at the contract price, or the landlord is required to repair, and the tenant absolved from payment of rent until the repairs are made. Johnson v. Oppenheim, 55 N.Y. 280; Gay v. Davey, 47 Ohio St. 396; Roach v. Peterson, 50 N.W. 80; Miller v. Benton, 13 A. 678; Dorr v. Harkness, 10 A. 400.

4. The first instruction granted to plaintiff is erroneous in that it is misleading, and might be interpreted by the jury as allowing damages resulting from loss of profits, whereas their inquiry should have been confined, in plain terms, to an ascertainment of the rental value.

Hudson & Perrin, for appellee.

1. There is nothing in the language of § 2498, code 1892 to indicate that it was not intended to apply to the destruction of buildings on agricultural lands, and the position of the section in the chapter on landlord and tenant, and its close connection with other preceding and succeeding sections of the same chapter having relation to the lease of such lands, refutes any such idea. The statute was designed to supply a deficiency of the common law, and afford an...