French v. Burns

Opinion by

W. D. Portee., J.,

The defendants sought to escape liability for the payment of rent upon the ground that the plaintiff had not complied with the written covenants of the lease relating to the furnishing of power and live steam. The covenants in question were in the following words : “ It is hereby further agreed that said lessees shall have the right and privilege of using twenty-four horsepower and no more, this power to include any live steam which they may use for their own business and not otherwise. It being the intent and meaning of above clause that, the live .steam *336aforesaid shall be in addition to the twenty-four horse-power.” The concluding words of the first sentence, “ which they may use for their own business and not otherwise,” refer to the twenty-four horse-power, and not to the live steam which was to constitute a part thereof, for if we make those words refer merely to the live steam, then it would be only such live steam as they used for their own purposes that should be charged against the twenty-four horse-power which was to be furnished, and they would be free to take live steam for the use of other parties without limit. That sentence meant that the lessees were to have the right of using twenty-four horsepower, including any live steam which they might use, and no more, for the purposes of their own business and not otherwise ; standing alone it would have made any live steam used by the lessees chargeable against the twenty-four horse-power to which they were under the lease entitled. The effect of the second sentence in this covenant was to entitle the lessees to tweffiy-four horse-power, without regard to the amount of live steam which they used. It was admitted by the lessees upon the trial that they had been in possession of the premises, under a prior lease, for a considerable period before this lease was executed, and that the power and live steam continued to be furnished during the entire period of their occupancy in the same manner in which those things had been done prior to the execution of this written agreement. The power had been, and continued to be, furnished through the medium of shafting, with pulleys and belts, and it is an undisputed fact that the lessor furnished the full twenty-four horse-power required by the terms of the lease. The only complaint of the defendants is that the plaintiff did not furnish additional live steam at a sufficient pressure to operate certain machinery not connected with the shafting, and heat certain other machinery to the degree desirable for its successful operation, although they admit that during the entire period of their occupancy the live steam at their disposal never fell below a pressure of fifteen pounds to the square inch. The written covenant upon which the defendants rely did not require the plaintiff to furnish live steam sufficient to produce any given pressure or temperature; it was only incumbent upon him to furnish twenty-four horsepower, without taking into consideration the -live steam. The *337jury found that the plaintiff had performed these covenants, and it was not for the court to read into the contract stipulations which the parties had omitted. None of the assignments of error raise any question of a contemporaneous parol agreement supported by evidence competent to reform the written lease, and any question of that character is removed from the consideration of the case. The language of the lease, it is true, is to be construed with relation to the subject-matter with regard to which the parties were dealing, but there was no evidence which indicated that there had been any change in the appliances through which the defendants were to receive the live steam, nor that there had been any neglect upon the part of the plaintiff or his agents to operate those appliances to their full capacity. The first specification of error is dismissed.

The contention of the appellants that the questions involved in this issue had been adjudicated in the former proceeding between the same parties is without foundation. The question at issue in that former proceeding was whether the defendants were liable for rent during the months of August, September and October, 1890; they denied all liability, and a judgment was entered against them on that issue, although less in amount than the plaintiff claimed. The defendants continued to occupy the premises and actually paid the rent for the months of November and December, 1890, and January and February, 1891. It is manifest that even if the judgment in the former case did establish the fact that the defendants had been damaged by the failure of the plaintiff to fully keep his covenants during the period for which he sought to recover rent in that action, the defendants could not continue to occupy the premises and after having paid the rent for months afterwards avail themselves of the former judgment as an adjudication that their rights had been interfered with when an action was brought for rent of the premises for months still further in the future. Even if the defendants had been partially deprived of the beneficial enjoyment of the premises during the period involved in the former action, their continued occupancy of the premises and payment of rent subsequently constituted a waiver of any right which they might have had to withdraw from the premises at the time of sucli interference with their beneficial enjoyment. The second and third assignments of error are without merit.

*338The court below reserved no question of law upon the trial of this cause and it was not within its power to enter judgment in favor of the defendants non obstante veredicto. There appears to have been no abuse of discretion in the refusal of a new trial. The fourth and fifth specifications of error are dismissed.

The judgment is affirmed.