Waddell v. Dejet

• Citation: 23 So. 437,76 Miss. 104
• Court: Mississippi Supreme Court
• Decision Date: 18 April 1898
• Parties: STELLA B. WADDELL v. MARGARET DEJET

23 So. 437

76 Miss. 104

STELLA B. WADDELL v. MARGARET DEJET

Supreme Court of Mississippi

April 18, 1898

March 1898

FROM the chancery court of Jackson county HON. N. C. HILL Chancellor.

Mrs Margaret DeJet, the appellee, was the complainant in the court below; Mrs. Stella B. Waddell, the appellant, was defendant there.

Mrs DeJet, in March, 1896, leased her tenement house on the seacoast to Mrs. Waddell for a term of ten years, for an annual rent of $ 120, payable monthly, the lease providing that the tenant was "to take good care of said property and return the same to Mrs. DeJet in as good order as it now is, ordinary wear and tear and damage by fire, wind, and water excepted, and make, at her own expense, all repairs." In February, 1897, Mrs. DeJet filed her bill in this cause, setting up the lease, averring Mrs Waddell's insolvency, and her refusal to make any repairs; that the roof was decayed, and the house thereby endangered, and the other facts stated in the opinion showing the necessity for prompt action to prevent serious damage to, if not the absolute destruction of, the property, and sought cancellation of the lease. Mrs. Waddell demurred to the bill, the court below overruled the demurrer, and Mrs. Waddell appealed to the supreme court.

Affirmed.

Cooper & Waddell, for appellant.

The tenant agrees to return the property at the end of the lease in as good condition as it was at the time when she took it, except as the condition of the property might be changed, first, by ordinary wear and tear; second, by damage by fire third, by damage by wind; fourth, by damage by water. The tenant further agrees not to call on the landlord for repairs, and to make all necessary repairs at her own expense. The manifest purpose of the present bill is to impose upon the tenant an obligation not only to put such repairs upon the place as shall be necessary to keep it habitable and fit for her use, but also to prevent deterioration from ordinary wear and tear; to improve the house by putting on a new roof, and thus diminish the liability to burn, and protect it from the combined effect of wind and water by building a breakwater in its front. The court will observe that the complainant insists that the appellant shall do precisely what her contract stipulates she shall not do. By the lease the tenant is not bound to answer for deterioration of the property by wear and tear, by fire, by wind or by water, but the complainant seeks to cancel the lease because the tenant refuses to protect the premises from injury by the excepted causes by expending large sums of money in improvements to prevent such injuries. In other words, though, by the lease, exemption to the tenant is secured from injury by certain agencies, the complainant contends that she must prevent such agencies from action, and if she does not, that cancellation of the lease should be decreed.

The court will observe that the conditions which now exist existed when the lease was made. The breakwater was down, the roof was old, the window lights were out, the Gulf of Mexico was at her door, and subject to storms from the south and west. With full knowledge of all these facts, the complainant expressly stipulated that the tenant should not be liable for injuries resulting from these or any of these causes, and yet she comes into court and demands cancellation of the lease because the tenant refuses to protect the premises from these possible injuries. The landlord has the right to make improvements if they are necessary for the preservation of the property. 12 Am. & Eng. Enc. L., 725, subdivision 5, and authorities cited under note 1.

The danger of loss apprehended by the complainant is said to exist, first, from fire and the waters of the Gulf of Mexico, and, second, from the inherent defects of the building. But in the contract all these things, it is expressly provided, the tenant shall not provide against. A covenant to restore premises in good order and condition, wear and tear excepted, is not broken where the injury results from inherent defects. Hess v. Newcomer, 7 Md., 325; Ardem v. Pullen, 10 M. & W., 321; Smith v. Stagg, 15 Jones & S., 514; Warren v. Wagner, 75 Ala. 200; Howeth v. Anderson, 78 Am. Dec., 538; Taylor v. Hart, 73 Miss. 22; Wattles v. South Omaha Ice & Coal Co., 50 Neb., 251, s.c. 36 L. R. A., 424.

J. I. Ford, for appellee.

The appellant contends that, by the terms of the lease, she is under no obligation to repair the breakwater, or the roof of the building, because the lease exempts her from damage "by fire, wind and water, " and that the word "water" thus used exempts her from paying for or repairing damage done by rain, resulting from appellant's negligence to repair the roof, and also from damage done by the encroachment of the sea undermining the embankment on which the house sits, resulting from appellant's negligence in failing to keep a breakwater in front of the property. We submit that this lease, like every other contract, is to be construed in the light of common sense and that interpretation given it which carries out the real intention of the parties. It is a cardinal rule of construction that every part of the contract must be...