Yaffe v. American Fixture, Inc.

Decision Date10 April 1961
Docket NumberNo. 1,No. 47992,47992,1
Citation345 S.W.2d 195
PartiesIsadore YAFFE, Plaintiff-Appellant-Respondent, v. AMERICAN FIXTURE, INC., Defendant-Appellant-Respondent
CourtMissouri Supreme Court

Shifrin, Treiman, Agatstein & Schermer, Sylvan Agatstein, St. Louis, for plaintiff-appellant-respondent.

Rexford H. Caruthers, St. Louis, and Husch, Eppenberger, Donohue, Elson & Jones, St. Louis, for defendant-appellant-respondent.

HYDE, Judge.

Plaintiff sued defendant for the final six $1,000 monthly rental installments claimed to be due on a lease and had judgment for $3,300. Defendant counterclaimed for damages for breach of covenant alleged to have been caused by failure to promptly restore the leased premises after damage by a windstorm and had judgment for $14,000. Both parties have appealed and notice of appeal was filed prior to January 1, 1960.

Plaintiff made a lease of a five-floor warehouse to defendant for a term commencing April 1, 1953, and terminating March 31, 1958, with monthly payments of $1,000. The warehouse was used by defendant for storage of products manufactured by it at another location. It was damaged by a windstorm on June 11, 1957; part of the roof being blown off and part of the wall destroyed. The lease contained the following provision: 'The destruction of said building or premises by fire, or the elements, or such material injury thereto as to render said premises unquestionably untenantable for thirty days shall at the option of said Lessor or Lessee produce and work a termination of this lease. If the Lessor and Lessee cannot agree as to whether said building or premises are unquestionably untenantable for thirty days, the fact shall be determined by arbitration; * * * If it is determined by arbitration or agreement between the Lessor and the Lessee that said building is not unquestionably untenantable for thirty days, then said Lessor must restore said building at Lessor's own expense with all reasonable speed and promptness and in such case a just and proportionate part of said rental shall be abated until said premises have been restored.' On June 15th, there was a heavy rain, while the building was thus exposed to the elements, causing more damage. Thereafter, tarpaulins and roofing paper were installed to provide partial temporary covering but did not prevent water from subsequent rains coming in and leaking through the upper floors into the basement, causing the floors (except the concrete basement) to buckle. The parties agreed (July 5, 1957) that the building was 45% untenantable and that portion of the rent was abated until 'the building is back in satisfactory condition for normal occupancy.'

The warehouse was in the Mill Creek area of St. Louis which was to be cleared of existing buildings for a municipal redevelopment project so that defendant would have to move after its lease expired. There was evidence that because of this situation, plaintiff did not decide to restore the building for some time after it was damaged but plaintiff also delayed restoration work because of a controversy with his insurance company over settlement for damages. Although plaintiff obtained a bid for making repairs from a contractor, about the middle of July, plaintiff did not claim authorization to commence work was made until about the 15th of August and the contractor said plaintiff did not order work commenced until the 18th or 19th of August. Representatives of defendant met with plaintiff on July 26th and talked about terminating the lease as of July 31st, with defendant thereafter occupying the premises as a month to month tenant at rental proportionate to the usable part of the building. Defendant claimed plaintiff orally agreed to do so and on July 29th defendant wrote a letter to plaintiff stating its oral understanding thereof in writing, which plaintiff was asked to sign. Plaintiff did not do so and about August 15th defendant decided to move to a warehouse it had contracted to purchase in July but had not intended to occupy until its lease from plaintiff expired. Thereafter, on August 17th, defendant served a notice on plaintiff terminating the claimed month to month tenancy and also stating 'that by reason of the fact that you have failed to restore the building hereinabove referred to to its condition prior to the storm damage thereto on June 11, 1957, with all reasonable speed and promptness as required by the terms of the lease of the premises above described dated January 23, 1953, between you as Lessor and American Fixture and Manufacturing Company as Lessee, the undersigned does hereby, in the event said lease was not effectually terminated by the oral agreement between you and American Fixture, Inc., made on July 26, 1957, and confirmed by the letter of American Fixture, Inc., to you dated July 29, 1957, terminate said lease as of September 30, 1957, and deliver possession of said premises to you on September 30, 1957.' Plaintiff claimed the receipt of defendant's letter of July 29th, claiming a month to month tenancy, was a reason for further delay in commencing the restoration work. Defendant claimed that it could not get a definite answer from plaintiff, during June and July, as to whether repairs would ever be made; and that the first definite statement defendant received that repairs would be made was in a letter from plaintiff's attorneys dated August 29th. Plaintiff (not a witness at the trial) said, in his deposition, that repairs were not started until he made an agreement with his insurance company and that was the reason for his delay.

On plaintiff's claim for rent, defendant contends that plaintiff failed to make a submissible case, claiming the evidence showed as a matter of law a breach of plaintiff's covenant to repair 'with all reasonable speed and promptness' which amounted to a constructive eviction entitling defendant to abandon the premises: Defendant claims that it did abandon the premises within a reasonable time (by September 30th) and therefore is not liable for rent after that time. Defendant also claims that, if there were fact issues as to constructive eviction, Instruction 2 was erroneous because it directed a verdict on the finding that plaintiff commenced repairs before defendant started to move and completed restoration of the walls and roof before the premises had been fully vacated by defendant. Plaintiff contends there was no constructive eviction because the work of restoration was commenced while defendant was still in possession of the premises and was completed before the premises were wholly abandoned. For the reasons hereinafter stated, our conclusion is that there were fact issues for the jury as to constructive eviction and defendant's waiver thereof.

'Any obstruction by the landlord of the beneficial enjoyment of the demised premises or any diminution of the consideration of the lease contract short of actual ouster may constitute constructive eviction. * * * Where a lease imposed on the landlord the duty to 'forthwith' repair damages which might be caused to the premises by fire, a failure for a period of nine days to repair operated as a breach of a condition precedent and constituted a constructive eviction of the tenant.' Bennett, Law of Landlord and Tenant, citing Barbour v. Waterston, 276 Mich. 304, 267 N.W. 845; see also American Law of Property, Sec. 3.51. As stated in the latter authority, page 282: 'Constructive eviction requires a substantial interference with possession or enjoyment, and the tenant must abandon the premises within a reasonable time. The basis of the latter requirement would seem to be waiver. So under particular facts it may be reasonable for the tenant to abandon the premises when a comparatively long period of time has elapsed since the initial interference, as where there is reliance on a promise of the lessor or where it is impossible for the tenant to move.'

In Lynder v. S. S. Kresge Co., 329 Mich. 359, 45 N.W.2d 319, 324, 28 A.L.R.2d 440, failure to make a promised alteration was held to be a constructive eviction, although waiver was claimed by continuance in possession with payment of rent for 23 months after the alleged breach. The court held there was no waiver because 'the tenant continuously sought the removal of the stairway and it was only when the tenant became convinced that the landlord did not intend to remove the stairway that it terminated the lease and surrendered the premises.' In J. C. Penney Co. v. Birrell, 95 Colo. 59, 32 P.2d 805, abandonment was not until after one year, during which time tenant paid rent under protest and not finding a place to move his store built a building for it. See also Annotations 28 A.L.R. 1448, 1475; 28 A.L.R.2d 451, 468; 32 Am.Jur., Landlord and Tenant, Secs. 246, 250, 251, 257; 52 C.J.S. Landlord and Tenant Secs. 455-459. In this case, the windstorm was on June 11, 1957, and the parties agreed that 45% of the premises were made untenantable. Defendant also showed that the floors were buckled by subsequent rains, which temporary tarpaulins and roofing paper did not keep out, so as to materially interfere with moving goods by push trucks and loading and unloading merchandise through the loading dock door. Plaintiff does not claim the work of restoration of the building commenced until August 26th and the restoration of the walls and roof was not completed until September 24th. Nothing had been done to repair or relay the floors when defendant completed its removal on September 30th. (The contractor said plaintiff stopped floor restoration.) However, defendant served notice of intention to terminate the lease on August 17th, and apparently plaintiff thereafter ordered the work to be commenced. One of plaintiff's reasons for not having the work done sooner was the dispute with his insurance company, but it also might reasonably be inferred that the future of the Mill Creek area, which was to be cleared of existing buildings, had...

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