Williams v. Bernath

Decision Date28 November 1939
Docket NumberNo. 27559.,27559.
Citation6 S.E.2d 184
PartiesWILLIAMS. v. BERNATH.
CourtGeorgia Court of Appeals

Rehearing Denied Dec. 14, 1939.

Syllabus by the Court.

1. Where the lessee has agreed "to repair" or "to keep in repair" generally the building or property rented and qualifies these words with other words, to-wit: to deliver the possession of the same property in the same condition at the expiration of the lease as at the time of the execution of the lease, natural wear and tear excepted (or words to like effect), the obligation is subject to the implied condition that the building or property shall be in existence at the end of the term and if before that time the property is destroyed by fire, the lessee will not be required, under the terms of the contract, to rebuild or be liable therefor. Otherwise "when the covenant is to repair, or keep in repair generally, without the qualifying words, the tenant, according to all the authorities, must rebuild." Levey v. Dyess, 51 Miss. 501, 509.

2. "Where a contract of rental has been terminated by mutual agreement [or operation of law] between the parties before the expiration of the term, the tenant is not liable thereunder for rent accruing from the occupancy of the premises after the termination of the contract."

3. Where the terms of a contract are set out fully in the petition, it is not necessary to allege whether the contract is in parolor in writing, and the special demurrer was improperly sustained. Nor was it proper to sustain the special demurrer calling for the time when the agreement was made, where the time of performance of the contract was readily ascertainable from the allegations of the petition. The judge erred in sustaining a special demurrer to the paragraphs in the petition relating to the concrete removed, because the plaintiff alleged the number of square feet taken from the floor and the amount per square foot to be paid for the concrete removed, and set forth a cause of action for $38.80. The general demurrer should not have been sustained, where the plaintiff set out a cause of action for any amount.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Action by S. A. Williams against A. Bernath for breach of lease contract. To review an adverse judgment, the plaintiff brings error.

Reversed.

James A. Branch and Thomas B. Branch, Jr., both of Atlanta, for plaintiff in error.

A. S. Grove, of Atlanta, for defendant in error.

MacINTYRE, Judge.

The plaintiff's petition was seeking to recover on an action ex contractu, arising out of a contract of lease and seeks to recover for a breach of the contract. The contract in the instant case provides in part that the lessor leased to the lessee a certain described parcel of land "for a term of five (5) years" at a stipulated rental. That "for and in the consideration of the rental mentioned aforesaid, the lessor agrees to rent to lessee, without additional charge, " certain described personal property including machinery, a boiler, an engine, pulleys, hangers, fixtures, etc. That "lessor hereby agrees to repair said property and to deliver said premises mentioned aforesaid to lessee in a tenantable condition. * * * (3) Lessee agrees to repair at his own expense the personal property leased to him, with the exception of the boiler in an amount not to exceed one hundred ($100.00) Dollars and the lessor will make repairs to said boiler and attachments thereto in an amount not to exceed one hundred ($100.00) Dollars in addition to the amount expended by lessee. (4) Lessee agrees to redeliver the said property (personal) mentioned aforesaid to said lessor at the termination of this lease in same condition, less natural wear and tear. (5) Should the premises be destroyed by fire or so damaged by fire as to become untenantable, this lease shall cease and any sums paid to said lessor by way of advancement of said rent shall be refunded to said lessee, pro rata. However, if said premises becomes only partially untenantable, the rent shall be apportioned, conditioned as to the use that the said lessee has of said premises. (6) Lessor agrees to keep said premises in a tenantable repair as herein set forth."

Our Code, § 20-704 (4), declares that: "The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part." The construction which we give the contract in question is that the lessee is to so repair and keep in repair the real and personal property therein referred to as to leave the said property in the same state of repair as he received it, less natural wear and tear. Mcintosh v. Lown, 49 Barb. N.Y., 550, 555. In the absence of any express agreement or covenant, "at common law a tenant for years must treat the premises in such a manner that no substantial injury shall be done them through any negligent or willful misconduct on his part, and must make fair and tenantable repairs" (Van Wormer v. Crane, 51 Mich. 363, 16 N.W. 686, 688, 47 Am.Rep. 582), but where there was an express covenant "to repair" or "to keep in repair, " the old English and American cases have held that such covenants "to repair" or "to keep in repair" mean that a building or property (not necessarily the same building or property) must be returned at all events, and, if destroyed by fire, must be rebuilt. The case of Meyers v. Myrrell, 57 Ga. 516, 517, states this principle. In that case the lessee covenanted, according to the lease, "to place said demised premises in serviceable condition and repair, and to keep them in such serviceable condition while he continues to occupy the same and during the continuance of this lease, and to return the same * * * in such serviceable condition and repair at the end and expiration of this lease." There the court stated that if the stipulation of the covenant could not be otherwise performed that the leased property must be rebuilt. The instant case differs from that case in that here the lessee was only to return the same property at the expiration of the lease in thesame condition that it was when turned over to him at the execution of the lease. There he was not necessarily to return the same property in the same condition that he received it, for at the time he received it it might have been that the property was not in a serviceable condition and if so he was not authorized to return to the lessor the same property in the same condition as it was in when received, but the property to be returned by the lessee was to be property different, at least, in that instead of being non-serviceable property at the time of its return to the lessor (as it was at the time he received it), it must be serviceable at the time of its return at the termination of the lease. The decided cases have said that where the covenant is to repair or "to keep in repair" generally, etc., the property without the qualifying words mentioned (to return the same property in the same condition or words to that effect), the obligation to rebuild in case of destruction of the leased property by fire or otherwise, falls upon the lessee. To illustrate this principle: Where there is such a covenant "to repair" or "to keep in repair" a fence on a leased premises and the fence is destroyed by decay or by fire, the fence must be rebuilt because such a covenant was held to be an express covenant to return the leased property with a fence although none of the specific materials should be in the fence that were in it when it was received, yet, a fence must be returned with the property. But many of the courts of this country have generally begun to say: "There are strong considerations that would render the court adverse to extending the doctrine of the tenant's liability in any degree beyond the decided cases." Levey v. Dyess, 51 Miss. 501, 507. While the courts say that we will follow the adjudicated cases, yet, they in effect say "we think, also, that it would be unwise, and would result in injustice, to push the responsibility of lessees for losses occurring from casualty and accidents, without fault or negligence on their part, further than it has (as we have seen) been carried by the adjudications" (Levey v. Dyess, 51 Miss. 501, 510), and in effect hold that if the promise is "to return the same building or property" or "the same building or property in the same condition, less natural wear and tear, " the gist of each of these statements is that the lessee is to return, at the expiration of the lease, the same property he received at the execution of the lease. "If the words 'to repair' or 'to keep in repair' generally the building or property rented, are qualified by the further words 'to return in the same condition (or words to that effect), ' and if the building or property is destroyed by fire, of course, it is impossible to return the same building or property and the law, not requiring one to do an impossible thing, therefore says that a reasonable construction of this covenant is that the obligation is subject to an implied condition that the building or property shall be in existence at the expiration of the lease and that if the building or property is destroyed by fire, the lessee is not liable under the contract for the return of the property or its value. 2 Restatement of Law of Contracts, §§ 460, 859, 863(6). 'There seems little doubt that this implication tends to further the great object of making the legal construction such as to fulfill the intention of those who entered into the contract. For in the course of affairs men in making such contracts in general would, if it were brought to their minds, say that there should be such...

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3 cases
  • Williams v. Bernath
    • United States
    • Georgia Court of Appeals
    • 28 Noviembre 1939
  • Sewell v. Royal
    • United States
    • Georgia Court of Appeals
    • 6 Septiembre 1978
    ...Crine v. Morehead, 106 Ga. 434, 436, 32 S.E. 349; Dougherty v. Taylor & Norton Co., 5 Ga.App. 773, 775, 63 S.E. 928; Williams v. Bernath, 61 Ga.App. 350, 352, 6 S.E.2d 184; Bell House v. Wilkins, 34 Ga.App. 285(2, 3), 129 S.E. 797. The cardinal rule of construction of contracts, including l......
  • Townsend v. Morris
    • United States
    • Georgia Supreme Court
    • 26 Mayo 1966
    ...natural wear and tear excepted' relieved the tenant of any possible obligation to restore the burned premises. Williams v. Bernath, 61 Ga.App. 350, 6 S.E.2d 184. There is no allegation that the tenant in any way defaulted his duties as assumed under the lease. Consequently, no grounds are a......

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