La Farge v. Mansfield

Pratt, J.

It is pretty difficult to ascertain, from the exceptions, what point the counsel for the defehdants designed to raise, and the points upon which the case was put to the jury. The principal witness for the defendants testified that, before the time for the commencement of the term, the tenants were allowed to occupy the premises for the purpose of preparing them for their business) and that they so occupied them, in conjunction with the workmen of the plaintiff, up to the time of the fire; but that the store had never been used by the lessees, or opened by them to the public.

It seems to me from the testimony, that there was a fair question, to be submitted to the jury, whether the lessees had, in fact, ever taken possession of the store, as tenants. If they had not, then they could only be made liable for the rent upon their covenants as for a breach of an executory contract. In such case, it would be incumbent on the plaintiff, to entitle him to recover, to show that he had performed on his part. If the lessees took possession, so that they became vested with the term, a breach of the agreement, on the part of the lessor, would constitute ho defense to an action to recover the rent reserved. They could only recoup the damages actually sustained. But, as this raised a fair question to be submitted to the jury, it became important to inquire whether there might not be implied in the lease a covenant, on the part of the lessor, that the store should be finished and fit for use, as a store, by the time stipulated for the commencement of the term. If there could be no such covenant implied, on the part of the lessor, then it was immaterial whether the lessees took possession or not, or whether the store was fit foi use or not. It seems to me, therefore, that the true construction of the lease was the first thing in order, in going to the jury, and the counsel for the defendants was entitled to a correct ruling upon that.

The question then arises, was there any such implied covenant ? My impression is that such a covenant should be implied. The lease should be construed in the light of the surrounding circumstances. It was the lease not of a lot with erections, but of a single store in a large building then in the course of being erected by the landlord. It can scarcely be assumed that the parties contemplated a store in a half finished state, by the term store. And the subsequent acts of both parties, if any thing else was wanted, show that the parties understood that it was to be a finished store, fit for immediate occupancy for the purposes for which it was leased. I think, therefore, that there was error in refusing to instruct the jury as requested.

As the judge refused to instruct the jury that such a covenant might be implied, it would, of course, be futile to go to the jury upon the question of actual occupancy by the lessees; and it must be, therefore, assumed that no such question was submitted to them. Indeed, it is difficult to perceive what question of fact was left to be submitted to the jury, after a refusal to instruct them that a covenant to have the store in readiness for occupancy on the 1st of November might be implied.

Upon the whole, I think a new trial should he granted. (Mayor &c. of New York v. Mabie, 3 Kernan, 151.)

Roosevelt, P. J. concurred.