Woodbury Co. v. Williams Tackaberry Co.

• Decision Date: 29 September 1914
• Docket Number: No. 28782.,28782.
• Citation: 148 N.W. 639,166 Iowa 642
• Parties: WOODBURY CO. v. WILLIAMS TACKABERRY CO.
• Court: Iowa Supreme Court

166 Iowa 642

148 N.W. 639

WOODBURY CO.

v.WILLIAMS TACKABERRY CO.

No. 28782.

Supreme Court of Iowa.

Sept. 29, 1914.

Appeal from District Court, Woodbury County; F. R. Gaynor, Judge.

Action for rent. By way of counterclaim, defendant prayed for damages in removing water and débris from the basement of the leased building, and a diminution of rent because of its partial destruction thereby. These were allowed, and plaintiff appeals. Reversed.Shull, Farnsworth, Sammis & Stilwell, of Sioux City, and A. M. Alger, of Boston, Mass., for appellant.

M. L. Sears, of Sioux City, for appellee.

LADD, C. J.

The plaintiff leased to defendant its four-story building and basement for a term of 5 years and 4 months beginning April 1, 1909, and the latter took possession under the lease. As the monthly rental of $425 for July, 1909, was not paid, this action therefor was commenced. There was an unprecedented flood on Saturday, July 10, 1909, and according to the stipulation of facts during the night following--

“the basement of the leased premises became filled with water, mud, and débris, which came in from the street through the cellar windows of the building, the volume of water due to the flood being such that the street sewers were inadequate to care for it, and the drain in said basement inadequate to carry it off with sufficient rapidity to prevent the flooding of the basement. Early on Sunday morning, July 11, 1909, the defendant began the work of pumping out the water from said basement, without notice to and the knowledge of the plaintiff. The work of pumping was completed some time during that day. While the work of pumping was in progress, defendant requested the plaintiff to furnish hose for use by it in pumping, and this request the plaintiff complied with. When the water had been pumped out, defendant proceeded to remove the mud and débris. The defendant did not at any time request the plaintiff to do any of the work aforesaid. The defendant did not at any time prior to the completion of said work notify the plaintiff that it would hold the plaintiff responsible for the cost of said work. At the time of said flood, the defendant had goods of considerable value stored in said basement, and in order to prevent or lessen damage and injury to them it was necessary to do the work aforesaid as expeditiously as possible. The flood did not work any physical injury to the structure of the building as a whole, or as to any part of it, but the pumping out of the water and removal of the mud and débris brought into the basement by the water rendered the basement unfit for use until such water was pumped out and the mud and débris were removed.”

The reasonable value of the services rendered in pumping the water and removing the débris and the materials used was $226.01, and the pro rata rental of the basement in the meantime was $42.50, and these sums defendant asked to be allowed as a counterclaim or offset. This was done, and whether rightly so is the sole question in the case. This necessarily depends on the terms of the lease, which, in so far as material, reads as follows:

“All property of any kind that may be on the premises shall be at the sole risk of the lessee, or those claiming through or under it, unless said loss or damage is caused by failure or refusal of the lessor to keep said premises and fixtures in tenantable repair, in which condition said lessor agrees to keep said property. Said lessee, however, shall pay for all small repairs it may make, the cost of which shall not exceed five dollars ($5.00) for each separate item. Said lessor shall not be responsible for any loss or damage on account of any interruption to the lessee's business in the use of said premises by reason of repairs or improvements made to said premises and fixtures, provided said repairs and improvements are made promptly on written notice from the lessee, its successors or assigns, and that the lessor, its successor or assigns, or its agents, may, during the said term, at reasonable times, enter to view the said premises, or to show the property and building to persons wishing to lease or buy, and may make repairs and alterations if it should elect so to do, provided it does not interfere with the business of the lessee.”

“It is further provided that if said building shall be totally destroyed by fire, or other inevitable casualty, or in case said premises, or any portion thereof, shall be taken for public or private use by the action of any public, judicial, or other competent authority, then said term under said lease shall absolutely determine at the option of said lessee; but in the event of the partial destruction only of said building by fire or other unavoidable casualty this lease shall continue, provided said building can be put in proper and tenantable condition within a reasonable length of time, and in case of such partial destruction, if the respective parties to the lease cannot mutually agree as to what would be a reasonable time to restore said premises and make it ready for occupancy, then such question of time shall be referred to three (3) disinterested persons, one to be chosen by each party to the lease, and they two to choose the third, the decision in writing of any two of whom shall be final and binding on both parties hereto; but should the lessors fail to restore or repair the premises within the time fixed by the arbitrators, as aforesaid, if this lease is continued, a just and proportional part of the rent, according to the nature and extent of the injury to said premises, shall be put in proper shape for use and habitation, such proportion of the rent to be determined in like manner as above provided, if parties hereto cannot agree, but in any event the rent shall be paid up to and including the day of such casualty.”

[1] Of course, the lessor was not bound to keep the premises in tenantable repair but for the provisions of the lease so requiring. Harris v. Heackman, 62 Iowa, 411, 17 N. W. 592;Piper v. Fletcher, 115 Iowa, 263, 88 N. W. 380;Flaherty v. Nieman, 125 Iowa, 546, 101 N. W. 280; 1 Tiffany on Landlord & Tenant, § 87. The counterclaim of defendant necessarily rests on the conditions of the lease quoted; one relating to keeping in repair, another to the partial destruction of the building, and the third to the diminution of rents in event of loss of the use.

[2] Was the effect of the water and débris in the basement such as to render the premises and fixtures in untenantable repair? Did these in the basement constitute a partial destruction of the property? The lease, when made, was of the premises in their then condition and location, and did not guarantee them against weather conditions, save as these put them in some particular out of repair. But the mere presence of some other substance, such as water or débris, did not effect the condition of repair in which the premises were kept. To repair, according to the lexicographers, means to mend, add to, or make over, restore to a sound condition after decay, waste, injury, or partial destruction. Farraher v. City of Keokuk, 111 Iowa, 310, 82 N. W. 773; In Lurcott v. Wakely, 1 K. B. 905, 923, Buckley, L. J., observed that:

“Repair and renew are not words expressive of a clear contrast. Repair always involves renewal; renewal of a part; of a subordinate part. A skylight leaks; repair is effected by hacking out the putties, putting in new ones, and renewing the paint. A roof falls out of repair; the necessary work is to replace the decayed timbers by sound wood; to substitute sound tiles or slates for those which are cracked, broken, or missing; to make good the flashings and the like. Part of a garden wall tumbles down; repair is effected by building it up again with new mortar, and, so far as necessary,...