Miller v. Benton

Loomis, J.

The defendants hired of the plaintiff certain rooms for manufacturing purposes in a building owned by him, for a term beginning July 1st, 1884, and ending May 1st, 1887, at an agreed monthly rent, and entered into the occupancy of the leased premises. In October, 1884, the building was so damaged by fire that the rooms in question became untenantable, and the defendants were compelled to seek new quarters for the prosecution of their business, an immediate continuance of which was of great importance to them. The plaintiff, in January, 1885, began to repair the building, and on the 14th day of February following notified the defendants that it was repaired and that he should hold them responsible for any loss that he should sustain from their breach of contract. They refusing to occupy or pay further rent, the plaintiff brought suit for the breach of their contract, which the court below decided against him, and he brings the case before this court by appeal.

The court below made a finding of the facts, and the following appear as the special ones affecting the question. The plaintiff, on the 20th of October, 1884, two days after the fire, wrote the defendants that he should “ proceed with all reasonable dispatch to restore the premises to good condition ”; to which they replied on the same day that they should not again occupy the premises. On the next day the plaintiff wrote them that he should require them to reimburse him for any loss in consequence of their breach of the covenants of their lease. The plaintiff had several conferences with his architect as to plans for the reconstruction of the building and the architect drew two or three different plans, and the contract for the work was not signed till December 20th, and the work was not completed till February 14th, 1885. The court finds that if the work had been begun at once after the fire it could have been completed in two months from that time, and if all practical speed had been used it could have been done in six weeks'; and that “the restoration of the building was not begun within a reasonable time after the fire, nor, after it was begun, was it completed within a reasonable time.” After the plaintiff had completed the work of restoration he wrote the defendants on the 14th of February that the building was repaired and that he should hold them responsible for his loss of rent. To this they replied on the 16th of February—“ We herein give you notice, as we have done before, that we shall not again occupy premises Nos. 84 to 94 Temple st., and we shall pay no loss which you may incur by reason of your premises not being again occupied.” On the"first of January the plaintiff, without consulting the defendants, had made a written lease to a third party for sixteen months of a room that had been but little injured by the fire and was a part of the space that had been leased to the defendants, and had put the lessee into possession ; but at the time the defendants wrote their letter of February 16th, to the plaintiff, they did not know of this lease.-

The plaintiff claims to recover under the provisions of the statute originally passed in 1869, but which appears in the General Statutes of 1875, p. 354, sec. 17, as follows :

“The tenant of any tenement which may be, without his fault or neglect, so injured as to be unfit for occupancy, shall not be liable to pay rent after such injury, so long as such tenement is untenantable, if he continue to occupy, unless it be otherwise expressly provided by written agreement ; and in case of such injury he may quit possession of such tenement; but if the same shall become fit for occupancy during the continuance of his lease, he shall then pay the rent and may again occupy it.”

A question is made whether a leased room is a “tenement” within the meaning of this statute. We see no reason to doubt that it is. The terms used are “tenant” and “ tenement ”—two words applied, both in popular and legal usage, to parts of a building leased without the land upon which the building stands, as well as to an entire building. We think the term covers everything that may be occupied under a lease; everything for which an action for use and occupation would lie at common law.

The action is brought to recover damages for the defendants’ breach of their contract. But there was no breach of contract in their removal to new quarters, and none in their mere refusal in advance to pay any damage which the plaintiff might suffer from their non-occupancy of the premises. The case is unlike that of a party contracting to perform certain work and before the time arrives giving notice of his determination not to perform it. Here the defendants were to do no act. Their occupancy or non-occupancy did not affect their obligation to pay the rent. The plaintiff did not join with them in rescinding the contract. It was the mere case of a debtor declaring beforehand that he should not pay his debt when it fell due. This would not be a breach of his contract. The breach would be committed only when the debt became due and was not paid. A notice by a tenant that he will pay no more rent does not vary the relations of the landlord and himself. He owes no duty and can violate none till the rent becomes due, and then if it is not paid he can be sued for it. The only breach of contract by the defendants was when the building was repaired and they were notified of the fact and a month’s rent had fallen due and they had refused to pay it.

We have said that the plaintiff did not join with the defendants in rescinding the contract, and they of course had no power to do it without his assent. It is found that he accepted their conduct as a final breach of their covenants in the .lease, and “ accepted the premises, but did not intend thereby to in any way release the defendants from his claim against them for damages arising from said breach.” If this is to be construed as a rescinding of the contract on his part, which of course the conduct of the defendants would have justified, it would have left nothing of the contract as a basis for a recovery of either rent or damages. Ordinarily the surrender of leased premises by the lessee and the acceptance of them by the lessor would constitute a mutual rescinding of the contract of lease, and it would cease to exist for every purpose. But it is manifest that nothing of the sort was intended by the plaintiff here. He accepted the possession of the premises, but did not intend thereby to relinquish his right to damages. But his right to damages would be gone if he accepted the possession as a rescinding of the lease on his part. We must therefore qualify his acceptance by his intent in making it. It is to be observed that the statute provides expressly that the tenant, after such an injury to the tenement, may “ quit possession.” Of course when lie does so the possession falls to the landlord. It is also necessary that he should have possession for the purpose of making repairs. And the statute does not make the liability of the tenant depend upon his reoccupying. It says—“ if the same shall become fit for occupancy during the continuance of his lease, he shall then pay the rent and may again occupy.” In any case of the abandonment of leased premises by a tenant, especially with a declaration that he will never occupy again, the landlord must havé the fight to take possession for the purpose of caring for the property and of leasing it to others, and is not to be prejudiced by doing so. The rescinding the contract is wholly a matter of intent on his part, and that intent will not be inferred from his merely taking possession, especially Avhen it is found that he did so Avith no intent to relinquish his rights under the lease, even though he might conceive his right to be only to damages.

The suit is brought for the recovery of damages for the breach of their contract by the defendants, but Ave think the complaint, though drawn with reference only to a recovery of damages, yet contains all that is necessary under our Practice Act for the recovery of the rent that was due when it Avas brought.' It states all the important facts of the case—the lease, the occupancy of the defendants under it, ■the injury to the building by fire, the removal of the defendants from it, its reparation by the plaintiff, the notice of it given the defendants, their refusal to occupy, and their continued neglect and refusal to pay the plaintiff anything further. It is true that the complaint demands a certain sum as “damages,” but we think, under our present liberal practice, any sum due under any name upon the facts stated could be recovered. The plaintiff can therefore recover upon it whatever rent was due at the bringing of his action, unless his right of action is defeated by other facts in the case that are to be considered.

And we will .say here in passing that, although the landlord’s right to the renewed rent in a case like this is dependent upon the statute, yet it is not properly a statutory obligation that is created and which is to be declared on as such, but a contract obligation revived by the statute, and to be declared on as a contract obligation. It is very questionable whether it is necessary in the complaint to set out anything more than the contract, it being a matter of no importance, so long as the contract is in force, how it became so. If in the case of a ten years’ lease there had been a month’s interruption of occupancy and rent during the first year, and the lease had then been revived by the statute, it could not be necessary to set out this fact in every suit for rent during the whole ten years.

But the most serious question in the case is as to the legal renewal of the liability of the defendants for the rent, upon the special facts of the case. The statute provides for such a renewal of liability if the premises “shall become fit for occupancy during the continuance of the lease.” But it is clear that the reparation must be made within a reasonable time. The landlord must not be negligent in the matter. He must not let his tenant suffer from any want of activity on his part. Here the court finds that the building was not repaired within a reasonable time—both that the repairs were not begun within a reasonable time, and that when begun they were not completed within a reasonable time.

And it is further found that a lease was made on the 1st of January to a third party for sixteen months of a portion of the space that had been occupied by the defendants and which of course they would have had a right to demand if they had returned to the occupancy of the premises after their reparation. It is clear that by this lease the plaintiff had put it out of his power to restore the possession of the premises to the defendants, and they of course were under ■no obligation to accept a part.

Here are two facts, either of which would in ordinary circumstances have barred the plaintiff of all right of recovery. But we think the defendants had placed themselves in a position where they could not avail themselves of either of these facts. They had in the most emphatic manner declared to the plaintiff in writing, immediately after the fire, and this in reply to his notice that he should immediately repair, that they should not occupy the premises again. It is found that the plaintiff accepted their refusal to occupy again as a final one and as a breach of their contract. He had a right to take them at their word. Doing so, the question how rapidly he should push the work of reparation was one which they had no interest in. Indeed the longer he delayed the better it was for them, for it saved them from liability for rent during the period of delay. We think the finding of the court that the repairs were not made within a reasonable time has reference only to what would be a reasonable time in an ordinary case, where there was nothing to excuse the landlord from prompt action. It cannot therefore affect the case as it stands.

And under this notice from the defendants that they should not occupy again, the plaintiff had a right to make the lease which he did of a portion of the premises to a third party. The defendants cannot complain if he did the best he could with the property. It was directly for their interest, as they would have the benefit of whatever he might receive as rent. All the analogies of the law sustain this view.

It is to be noticed, as confirming the plaintiff’s understanding of the defendants’ letter of October 20th, as a full and final refusal to occupy the premises again, that in their letter of February 16th, in reply to his of the day before, they say—“We herein give you notice, as we have done before, that we shall not occupy,” etc., making it clear that their final refusal to occupy again was not founded upon anything that had occurred since the fire, but was wholly a carrying out of the purpose first expressed and ever since held. It is found that the defendants did not know at this time of the written lease of a part of the premises on the 1st of January, 1885. We take this to mean that they had no knowledge that any lease had been made. If, however, it means that their ignorance was merely of the written lease, and that they knew that the rooms had been leased, the case becomes the stronger against them, because, with knowledge of the lease, they did not refer to it as a reason for their refusal to occupy.

We think the plaintiff therefore entitled to recover whatever rent had accrued, and would have become due if the defendants had gone into occupancy, between the 14th day of February, 1885, and the last rent day before the 18th day of February, 1886, the day when the suit was brought, allowing in favor of the defendants whatever rent he had received from the premises from other parties.

There is error in the judgment appealed from and it is reversed.

In this opinion Park, C. J., and Pardee, J., concurred.