Willis v. Wrenn's ex'X

• Decision Date: 19 March 1925
• Citation: 141 Va. 385
• Court: Virginia Supreme Court
• Parties: WILLIS AND OTHERS v. WRENN'S EXECUTRIX.

Page 385

141 Va. 385

WILLIS AND OTHERS v. WRENN'S EXECUTRIX.

Supreme Court of Virginia, Richmond.

March 19, 1925.

Absent, West, J., Case submitted for decision before Judge Kelly qualified.

1. LANDLORD AND TENANT — Repairs — Duty of Tenant Independent of Covenant. — Independent of any covenant or agreement to repair, a tenant is not bound to make any repairs not caused by his fault or negligence.

2. LANDLORD AND TENANT — Repairs — Covenant to Repair — Duty to Rebuild or Reconstruct — Common Law. — At common law a covenant to repair or to leave the premises in good repair bound the tenant to rebuild the buildings, though destroyed by fire or other accident, and without fault or negligence on his part, and if he desired to relieve himself from such liability, he had to do so by excepting such liability from the operation of his covenant.

3. LANDLORD AND TENANT — Repairs — Covenant to Repair — Duty to Rebuild or Reconstruct — Statutory Rule. — But under section 5180 of the Code of 1919, the common law rule is reversed, and no contract or promise by a lessee to leave the premises in good repair binds him to rebuild, unless there be other words showing an intent that he shall be so bound. The statute is a complete reversal and repeal of the common law on the subject. Under the statute a covenant to leave in good repair is not a covenant to rebuild, and he who would hold a tenant to the obligation to rebuild must produce a contract containing "other words showing it to be the intent of the parties that he should be so bound."

4. LANDLORD AND TENANT — Duty of Tenant to Repair — Rebuilding — Case at Bar. — In the instant case a tenant contracted to leave the premises in good repair and not to call upon the landlord for any repairs during the lease; and to pay himself for all necessary and proper repairs.

Held: That the tenant was not bound to replace or rebuild, but only to pay for necessary and proper repairs.

5. LANDLORD AND TENANT — Duty of Tenant to Repair — Repairs or Replacement — Case at Bar. — In the instant case the tenant was not bound by his contract to replace or reconstruct, but only to pay for necessary and proper repairs. During the lease a parapet, which ran up about two and a half to three feet above the roof of the premises fronting the street, fell by reason of a hidden structural defect unknown to the tenant and probably to the landlord. The parapet was not necessary to the preservation or protection of any part of the building.

Held: That work done in replacing the parapet was not a necessary or proper repair within the meaning of the contract, but was a replacement or rebuilding of the parapet.

6. LANDLORD AND TENANT — Duty of Tenant to Repair — Repairs or Replacement — Case at Bar. — In order to bind a tenant to replace or reconstruct a parapet on the front of the leased building, which fell from a hidden structural defect unknown to the tenant, his covenant ought to be special and express, and so clear as to leave no doubt that he intended to take this duty and charge upon himself. Nothing should be left to vague inferences or doubtful contruction.

Error to a judgment of the Law and Chancery Court of the city of Norfolk, in a proceeding by motion for a judgment for money. Judgment for defendant. Plaintiffs assign error.

The opinion states the case.

Jas. G. Martin & Bro., for the plaintiffs in error.

Earl W. White and H. M. Woodward, for the defendant in error.

BURKS, J., delivered the opinion of the court.

The plaintiffs in error were plaintiffs in the trial court. On February 1, 1916, the plaintiffs leased to the defendant's testator a large brick building in the city of Norfolk for a term of seven years. The contract was in writing, and contained the following covenants on the part of the lessee: "That he will pay the rent and insurance premiums on the said building and improvements in manner as hereinbefore stipulated, that he will not assign without leave; that he will leave the premises in good repair; and that the lessors may reenter for default of sixty days in the payment of rent or for breach of covenants. And the said party of the second part covenants that he will not call upon the said parties of the first part for any repairs during the said lease, but will himself pay for all and any repairs that may be necessary or proper during the same."

The building was of brick, four stories high, forty-eight feet six inches front, and one hundred and fifty-six feet deep. The roof was flat, and on the front there was a wall or parapet extending from two and a half to three feet above the roof. This parapet was a brick wall thirteen inches thick, and on the inside of it next to the roof there had been put into the wall, about eighteen inches from the top thereof, at the time of construction in 1900, a wooden beam or joist two inches by eight inches and extending along the whole of the front wall. This beam was visible from the roof, but could only be removed or replaced by removing the bricks above it. The edge of this beam was exposed to the weather, but had not been painted and consequently rotted and the wall above it fell. There was some controversy over the question whether or not the placing of this beam in the wall was faulty construction in the first instance, but the evidence on the subject was conflicting, and the verdict of the jury in favor of the defendant is conclusive that it was faulty construction.

When the wall fell, the plaintiffs called on the tenant to replace it, which he refused to do. Thereupon the plaintiffs replaced the wall at a cost of $420.42, and brought this action against the tenant to recover that amount. There was a verdict and judgment for the defendant, and the plaintiffs assign error.

The part of the wall which fell was of no use to the tenant. He had no knowledge or information of the defective construction, and the existence and condition of the wooden beam was only discoverable by going upon the roof of this four story building.

The crucial question in the case was, was the rehabilitation of the wall a repair, or a replacement, or rebuilding, of the wall. The parties sought, in various ways, to present this question, but especially by the instructions which are copied in the margin.^* While there is some adverse criticism of the language of the instruction given for the defendant, we deem it unnecessary to enter upon a discussion of it as the ultimate result must depend upon the proper answer to what is said above to be the crucial question in the case, and the case should be ended here and now, without further litigation.

1, 2 Independent of any covenant or agreement to repair a tenant is not bound to make any repairs not caused by his fault or negligence. But the common law rul was firmly established that a covenant to repair or to leave the premises in good repair, bound the tenant to rebuild the buildings, though destroyed by fire or other accident, and without fault or negligence on his part, and that if he desired to relieve himself from such liability he had to do so by excepting such liability from the operation of his covenant. Ross Overton, 3 Call (7 Va.) 309, 2 Am.Dec. 552; Vaughan Mayo Milling Co., 127 Va. 154, 102 S.E. 597, and cases cited. The rule is well stated and the authorities therefor cited in 16 R.C.L. 1088, section 605:

"It is the well settled common law rule that a tenant's general covenant to repair the demised premises binds him under all circumstances, even though the injury proceeds from an act of God, from the elements, or from the act of a stranger, and if he desires to relieve himself from liability for injuries resulting from any of the causes above enumerated, or from any other cause whatever, he must take care to except them from the...