Tyson v. Weil

• Decision Date: 24 November 1910
• Parties: TYSON v. WEIL.
• Court: Alabama Supreme Court

53 So. 912

169 Ala. 558

TYSON v. WEIL.

Supreme Court of Alabama

November 24, 1910

Appeal from City Court of Montgomery; W. H. Thomas, Judge.

Action by J. C. Tyson against Abe Weil for rent, begun by attachment. From a judgment awarding insufficient damages plaintiff appeals. Reversed and remanded.

The pleas are as follows: (3) "That the consideration for the notes sued on was for the rent of storehouse No. 207 Commerce street, in the city of Montgomery, Alabama, which storehouse was rented to the defendant by the plaintiff pursuant to the provisions of a certain lease entered into by and between plaintiff and defendant on the 1st day of May 1908, whereby the defendant was to occupy the said storehouse as a dry goods store and not otherwise for a period beginning May 1, 1908, and ending September 30, 1909, at the rate or rental of, to wit, $100; and defendant avers that among other provisions of said lease the following provision appears therein: 'It is also understood and agreed that, in case the said leased premises shall be destroyed by fire at any time during the continuance of this lease, the same shall cease unless the party of the first part shall at once rebuild or place said store in a tenantable condition within a reasonable time.' And defendant says that on, to wit the 2d day of April, 1909, a fire occurred in said storehouse, and so damaged the said storehouse that the same could not be used by the defendant for the purposes for which the same was rented, of which the plaintiff had due notice and the defendant further said that the plaintiff, who was the party of the first part in said contract of lease, did not within a reasonable time place said storehouse in a tenantable condition. Wherefore defendant says he is not liable to the plaintiff for rent of said premises, except as to the time of said fire, which was, to wit, a period of two days." Plea 4 is the same as 3, except that it omits to allege that plaintiff, who was a party of the first part in the lease, did not within a reasonable time place said storehouse in a tenantable condition. (7) Same as 3, with the additional allegation that plaintiff did not place said storehouse in a tenantable condition within a reasonable time thereafter, and as a result thereof, proximately, this defendant was damaged in the use of said storehouse in the sum of, to wit, $600, which he offers to set off against plaintiff's demand. (9) Same as 3, down to and including the words "September 30, 1909," with the additional averment that among the other provisions and conditions of said lease the plaintiff agreed to keep the elevator in said storehouse in repair, except when breakage and damage was caused by the fault of this defendant, and defendant says that the plaintiff failed to comply with such provision of said contract, in that on, to wit, the 2d day of April, 1909, a fire occurred in said storehouse without the fault of this defendant, and damaged and injured said elevator, so that the same could not be used by this defendant, and plaintiff failed to repair said elevator within a reasonable time after said fire, and as a proximate consequence thereof this defendant was damaged in the use of said storehouse in the sum of, to wit, $500, which he offers to set off against plaintiff's demand.

The following demurrers were interposed to the third plea: (1) "That the covenant shown by such plea, if breached and damages sustained by such breach, is matter for original complaint, or for plea of set-off, and not for plea in bar of the action." (2) "It does not appear that defendant abandoned the premises after the breach of the covenant, if there was a breach." (3) "The plea does not negative but that the fire originated through the negligence or fault of the defendant." (4) "For that, from aught that appears, the fire was occasioned by the negligence or fault of the defendant." (5) "The facts averred do not show a termination by the defendant of the lease." (6) "It is not averred that the store was rendered untenantable by the fire." (7) "For aught that appears, the defendant continued to occupy the leased premises after the lapse of a reasonable time after the same had been destroyed by fire, and after it became the duty of the plaintiff to place said store in a tenantable condition." (8) "The plea is no answer to that part of the complaint seeking a recovery upon the note due May 1st." The same demurrers were assigned to the fourth and seventh pleas. The fourth ground of demurrer assigned to the eighth and ninth pleas was: "It does not appear in and by said plea that the plaintiff had any notice that the elevator was out of repair or in a damaged condition, or that he permitted it to remain out of repair for an unreasonable length of time."

A number of replications were filed, not necessary to be here set out. So far as the fire clause of the lease is concerned it is as follows: "It is also understood and agreed that, in case the said leased premises shall be destroyed by fire at any time during the continuance of this lease, the same shall cease unless the party of the first part shall at once rebuild or place said store in a tenantable condition within a reasonable time." As to the elevator the contract was as follows: "The party of the first part agrees to keep the elevator and waterworks in repair, except...