Woods v. Postal Telegraph Cable Co.

• Decision Date: 14 October 1920
• Docket Number: 7 Div. 58
• Citation: 87 So. 681,205 Ala. 236
• Parties: WOODS v. POSTAL TELEGRAPH-CABLE CO.
• Court: Alabama Supreme Court

87 So. 681

205 Ala. 236

WOODS v. POSTAL TELEGRAPH-CABLE CO.

7 Div. 58

Supreme Court of Alabama

October 14, 1920

Rehearing Denied Jan. 20, 1921

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Unlawful detainer by Florence Woods against the Postal Telegraph-Cable Company for a certain storehouse and lot in the city of Anniston. Judgment for defendant, and plaintiff appeals. Affirmed.

General objections to evidence are without weight on appeal if the evidence is admissible for any purpose.

The contract of lease was between Miss Woods and the Postal Telegraph-Cable Company for a period of two years with the usual terms and conditions. It contained the following:

The telegraph company agree to vacate premises, on four months' written notice to G.H. Usher, general superintendent, Atlanta, Ga., any time during the first year of this lease provided the lessor sells the building in which these premises are located or desires to improve same, and provided in which case the lessor also pays the telegraph company two hundred dollars damages to cover moving expenses.

The telegraph company agrees to vacate premises any time during second year of this lease, for reasons mentioned in foregoing paragraph and on four months' similar written notice, provided landlord pays one hundred and twenty-five dollars damages to telegraph company to cover moving expenses.

On the 13th day of August, 1917, during the second year of the lease, notice was served on the lessor that the lessee desired to make certain improvements and offering to pay $125 moving expenses. Later they were informed of what changes were sought, and also that the place had been rented to one Bromberg, who filed notice to quit, as did Miss Woods. No question is raised as to notice.

The bulk of the testimony related to a contract made by plaintiff on August 13, 1917, with one F.W. Bromberg, by which she leased this storehouse to him at $125 per month; the term to begin at the end of the four months' period allowed the defendant company for vacation after notice. In the negotiations leading up to that lease plaintiff was represented by J.J. Willett, who testified that the contract with Bromberg was made before notice of cancellation was served on the defendant, and that as a part of the trade Bromberg was to make certain improvements and repairs on the building, that is, was to put in a new plate glass front suitable for a jewelry store, put in a new floor paper and paint the walls, and adjust the electrical work to suit his own pleasure, in addition to paying $125 per month as rent, which improvements were estimated to cost from $800 to $1,100.

On cross-examination the witness testified, in part, as follows:

"I think plaintiff made about three contracts with Bromberg. One contract was for a lease of the building, and there was an oral contract as to the repairs and improvements he should put on the building, and afterwards Bromberg came into my office and agreed to do the same things. There was only one written contract between us which fixed the amount of rent Bromberg was to pay monthly. *** He offered $150, but I refused to accept it if it put us on the duty of supervising the repairs and improvements. *** The real substantial agreement between me and Bromberg was not that I was to let him have the place for $125 per month, and he to do what he pleased about improvements. We had a definite understanding as to what improvements he was to put in."

Witness stated that on the former trial he testified that he showed Bromberg the defendant company's lease and told him. "We can terminate that lease on a four months' notice." He further testified:

That he told Bromberg that he would take $150 as the building stood, and "Bromberg said it would not do for him in the condition it was. *** I knew very well that we had to improve the building in order to cancel the Postal Telegraph-Cable Company's lease."

After being interrogated as to certain statements made by him on the former trial tending to show that Bromberg's contemplated improvements were permissive merely and not compulsory, the witness answered:

"While I hardly have any definite recollection about that, I relied upon Mr. Bromberg's statement as to what he was going to do, rather than requiring him to do anything. I had confidence in him and did not put it in the nature of a requirement."

Bromberg testified, in part, as follows:

"I offered $150 for the building provided Mr. Willett would fix it. I am bound for nothing more than is set out in this contract. The only difference about that was that I was to put in the window. I told Mr. Willett it would be necessary for the front to be put in; that jewelry stores had to have different fronts and had to be fixed different from other stores. I did not obligate myself to spend any specified amount on this building. I did not agree to put in a floor at all, *** but I surmised that it needed repairs. There was no contract about the floor, but I would have had to put in a different front and a different glass. *** The understanding was that I would put it in for my purposes and in my own way for the purposes of conducting a jewelry store. *** I did not contract to put in the front; I just simply told him I would put in a different front, *** and what I spent was optional with me, whether it was to be $100 or $500. *** He gave me the privilege of using the glass already in the building, and for $10 or $20 I could have rearranged the glass there to a jewelry front. *** I did not obligate myself to use any different glass from what he had there. *** The only thing I told Mr. Willett was that I would change the front of the store and make it suitable for the jewelry business, and get new material if I saw fit. *** I had a conversation with Mr. Willett in which he said something about getting the Postal Telegraph-Cable Company down, and he had them out; was going to beat the life out of them, or beat the devil out of them, or something to that effect."

The cross-examination of the witness Bromberg related chiefly to his testimony on the former trial, and tended to contradict his testimony as above set out.

The testimony of the witness Goodwin, and also of the witness Willett, was to the effect that in most cases store fronts were changed to meet the requirements of new tenants when they went in.

The interpretation and construction placed on the lease contract between plaintiff and defendant is shown by the following instructions given to the jury by the trial judge:

(1) If it was a term of the trade between the plaintiff and Bromberg that it would be left to Bromberg whether the improvements he put on the premises should be of value or should be of substantially no value, then plaintiff cannot recover.

(2) The court charges the jury that if the desire on the part of the plaintiff was merely to get the defendant out and to get Bromberg in at an increased rental, and not a desire in good faith to improve the building, the jury must find for the defendant.

(3) The court charges the jury that, unless the jury are reasonably satisfied from the evidence that the plaintiff had a bona fide desire to improve the building and gave notice to the defendant to terminate the lease in pursuance to such bona fide desire, the jury must find for the defendant.

(4) A mere rearrangement of the front, using the same material and adding only a trifling value to the property would not be an improvement which would justify the cancellation of the lease.

(5) If, under the agreement between the plaintiff and Bromberg, Bromberg could have discharged his obligations to plaintiff only expending a trivial sum on alterations plaintiff cannot recover.

(6) The court charges the jury that in this case the burden of proof is on the plaintiff to reasonably satisfy your

mind that she entertained a bona fide desire to improve the property; and, unless this burden has been discharged, your verdict should be for the defendant.

(7) The court charges the jury that if the only work which plaintiff desired to do on the property was to rearrange the storeroom in a minor way in order to meet the wishes of a new tenant, as is customary when one tenant succeeds another, plaintiff cannot recover.

(8) The court charges the jury that if there was no bona fide desire on plaintiff's part to improve the premises, but plaintiff was merely seeking some pretext to bring about the cancellation of the lease, then plaintiff cannot recover.

(9) The court charges the jury that plaintiff would not desire to improve the property, within the meaning of the lease in this case, if she simply rented the property as it stood to Bromberg, leaving him free to improve it or not as he saw fit.

(10) The court charges the jury that if the substance of the transaction between the plaintiff's agent and Bromberg was that Bromberg had rented the property for $125 a month, and was allowed to do work thereon or not, as he saw fit, then plaintiff did not desire to improve the property within the meaning of the clause of the lease which gave plaintiff a right to cancel the same in case of a desire to improve the property.

(11) The court charges the jury that if Bromberg simply told plaintiff's agent that he expected to change the front and do other work on the premises, but that it was not part of the agreement between plaintiff and defendant that Bromberg obligated himself to do so, then plaintiff cannot recover.

(12) The court charges the jury that if the substance of the transaction between plaintiff and Bromberg was that plaintiff rented or undertook to rent the property to Bromberg as it stood, refusing to make any improvements on it herself, and leaving Bromberg to do as he pleased about it, then plaintiff is not entitled to

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