Young v. Berman

• Decision Date: 27 June 1910
• Citation: 131 S.W. 62,96 Ark. 78
• Parties: YOUNG v. BERMAN
• Court: Arkansas Supreme Court

131 S.W. 62

96 Ark. 78

YOUNG v. BERMAN

Supreme Court of Arkansas

June 27, 1910

Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; affirmed.

STATEMENT OF THE COURT.

This was an action instituted by the appellees to recover for the rent of a two-story brick store house situated in the city of Fort Smith. The original complaint was filed in May, 1909 and sought to recover the rent for the month of April, 1909. The cause was not tried until November 6, 1909, and on that day it was agreed by the parties orally in open court that the complaint might be considered amended so as to sue for rents due under the hereinafter mentioned lease for the months of April, June, July, August, September, October and November, 1909. There is a question as to whether or not the rent for the month of November was included in this amendment, which will be hereafter further noticed. The action was founded upon a written lease. On January 1, 1909 the parties entered into a written contract by which appellees rented to appellant the above property for a term of two years at a rental to be paid monthly in installments of $ 187.50 per month from the first to the fifth of each month. The contract contained the following provisions relative to the repairs of the property: "Any repairs deemed necessary by lessee on the inside of the building for his convenience to be made by him at his own expense with the consent of the lessor, and all repairs and alterations so made to remain on premises without cost to lessor, excepting that lessee may remove all shelving, gas and electric fixtures and furniture. Lessor to keep building in habitable repair at all times. Said lessee and all holding under him agree to use reasonable diligence in the care and protection of premises during the term of this lease; to pay water license assessed against property; to keep water pipes and plumbing in order, unless beyond his control or power to prevent. It is understood that said premises are to be kept free of all nuisances, whether of privy, yard, cellar or sewer, at the expense of said lessee. The lessee obligates himself to keep the premises at all times free from the accumulation of ashes, trash or any rubbish."

The appellant had been in possession of the building for some years under a prior lease. On December 19, 1908, he wrote to appellees that the building was in an unsanitary condition caused by the faulty construction of the sewer, which admitted sewage into the basement; and he asked the appellees to make repairs necessary to remedy the condition. On December 22, 1908, the appellees replied by letter saying that they had sent a plumber to investigate the matter, and that he had reported that he could correct the defect. They also claimed in the letter that the unsanitary condition was due to negligent acts of appellant, and stated that they would do their part towards placing the premises in perfectly sanitary condition, and that it was the duty of appellant to make certain alterations in his management of the building and to keep it in sanitary condition. After this correspondence the above written contract of lease was prepared and sent to appellant for his execution. He signed same, and sent it to appellees with a letter in which he stated that "my acceptance and signing of this lease is conditioned" that the repairs which appellees agreed to make in the above letter of December 22 would be promptly attended to. In their complaint the appellees alleged that the appellant had paid the rents for the months of January February, March and May, 1909, but had failed to pay the rents for the other months above-named. In his answer the appellant alleged that appellees had failed to make the repairs to keep the building in habitable repair as required by the contract; that, by reason of this breach of the contract on the part of appellees, he had surrendered the lease and therefore was not liable for the rents sued for. He also alleged that he was damaged by reason of the failure of appellees to repair the building, and sought a recoupment of such damages against any claim that appellees might have for rents.

The appellant introduced testimony tending to prove that appellees had failed to place and keep the building in a sanitary and habitable condition. On the other hand the appellees introduced testimony tending to prove that about the time of the execution of the lease they had employed a plumber who corrected the defect in the sewer, and that they had placed the building in a sanitary condition and kept it in habitable repair; that after the repair of the sewer had been made the box over the drain had been disturbed and the cover broken, causing some water to accumulate in the cellar and that this was due to acts of appellant.

The undisputed proof was that appellant was and continued in possession of the building under the lease, and sublet it during the months of February, March and April. On March 3, 1909, appellant wrote to appellees, stating that the building was not, and had not been placed, in habitable repair, and asking that it be put in that condition. To this letter appellees made no reply. On April 6 appellant again wrote to appellees, stating that the building was in an unsanitary condition, and on that account he declined to be further bound by the contract, and that he was ready to turn over the building; and requested them to indicate to whom they desired him to deliver the keys. On April 10 appellees replied that they declined to accept a surrender of the lease, and insisted that they had complied with the provisions of the contract on their part. Subsequently appellant again wrote appellees that he surrendered the lease and tendered to them the keys of the building, which appellees refused to accept. The uncontroverted evidence shows that appellant did not vacate the building or actually surrender the possession thereof. He remained in the possession of and actually occupied it during all the months from the date of the execution of the contract to the day of the trial. He paid the rent for the month of May, 1909, and had an application from a merchant to rent it in May, 1909, and refused to do so, not because he had abandoned it and did not have the right to sublet it, but because, as he claimed, this person desired to rent only a part of the building, and for a short time.

At the request of the appellees the court gave among others the following instructions:

"D. If the jury find from the evidence that the building was not in habitable repair during any of the months for which plaintiffs sue for rent, defendant would be entitled to a credit on the rent sued for, whatever amount you find from the evidence it would cost to put the building in habitable repair.

"E. The jury will find for the plaintiff $ 187.50 for each of the months sued for with 6 per cent. interest on each month's payment from the first day of the month it was due to the present time. And, if you find from the evidence that the building was not in habitable repair during any of these months, you will find for the defendant for the amount you find from the evidence it would cost to put it in habitable repair, and from the two sums so found you will strike a balance and return the verdict accordingly."

The appellant requested a number of instructions, which were refused. They embodied substantially the following declarations: that if the appellees failed to keep the building in habitable repair so that same became unfit for the purpose for which it was rented, then appellant had the right to cancel the lease, and would not be liable for any rents.

The jury returned a verdict in favor of appellees for the rents of all the months except November.

Judgment affirmed.

Ira D. Oglesby, for appellant.

Read & McDonough, for appellee.

As long as the lessee remains in possession, the failure to put in improvements as agreed would not relieve the lessee from his liability to payment. Jones, on Landlord & Tenant, § 673. The tenant can only recoup as damages what it would have cost him to make such repairs, but...