Chambers v. Lindsey , 171 Ala. 158 ( 1911 )

ANDERSON, J.

“Where the agreement is to keep the premises in repair, or to make all necessary repairs during the term, a notice by the tenant to the landlord of the need of repairs is, as a general rule, necessary to place the landlord in default for not repairing.” Tyson v. Weil, 169 Ala. 558, 53 South. 912; 18 Am. & Eng. Ency. of Law, 229 Manchester Warehouse Co. v. Carr (Eng.) 5 C. P. D. 507; Sieber v. Blanc. 76 Cal. 173, 18 Pac. 260 Marley v. Wheelwright, 172 Mass. 530, 52 N. E. 1066; Gerzebek v. Lord, 33 N. J. Yaw, 240; Thomas v. Kingsland, 108 N. Y. 616, 14 N. E. 807; Cooke v. England, 27 Md. 14, 92 Am. Dec. 618. Of course, if the landlord obligated himself to repair defects during the tenancy and had knowledge of same, notice would not be necessary; but in order to charge a breach of the covenant to keep in repair, the complaint should either •charge that notice was given or that the landlord knew of said defect, and failed within a reasonable time thereafter to malte the repairs. Count 1, as amended, •does charge notice of the condition of the roof, and that the defect arose during the tenancy and after the defendant acquired the property from Wagar, but it •does not aver that he failed to repair within a reasonable time after the notice. Non constat, the plaintiff may have sued the defendant immedately after the notice and before he had time to make repairs. The trial court •did not err in sustaining the demurrers to count 1.

“The benefit of the landlord’s covenant to keep the premises in repair, prior to the breach, runs with the term, and may be enforced by the assignee of the leasehold estate. And the burden of the landlord’s covenant to repair runs with the reversion, and is enforceable against the grantee of the reversion. As regards a covenant by the landlord to put the premises in repair, there can be only one breach; and, where that occurs while the original lessor is the owner of the reversion, the covenant cannot be enforced against the grantee of the reversion.” 18 Am. & Eng. Ency. of Law, 232; Gerzebek v. Lord, 33 N. J. Law, 240; Cowart v. Gregory, 12 Jurist (N. S.) p. 1000.

The lease in question contains two covenants, one to put in repair as soon as the work can be done, and the other covenant is continuous in character, and requires that the premises be kept in repair after being put in good condition, and is therefore dependent upon a compliance, by the lessor, with the first covenant to put in a good condition, and unless the defendant bought the hotel from Wagar, before a breach of the first covenant, it did not run with the term, and as the complaint does not aver that this covenant had not been breached when the defendant acquired the property from Wagar, it does not show that this defendant is liable for a breach ■of same.

The second covenant, however, is continuous in its character and runs with the land, and could be enforced as against this defendant as to all breaches occurring after he bought the hotel property; but a breach of the second covenant as to the roof was dependent upon a compliance with the first covenant to put in good condition, as the second covenant requires that the roof be-kept in repair after the preliminary repairs are made. Indeed, counsel for the plaintiff framed the second ■count under this theory and seek to recover for a breach of the second covenant to keep in repair by averring that the defects arose “after the preliminary repairs provided by said lease had been done.” The second ■count, before amendment, failed to aver notice of the defects, and, being for a failure to repair defects arising during the tenancy, was subject to the defendant’s demurrer, and whether the amendment’relieved it of this defect or not we are not called upon to decide, as the demurrer to same as last amended was overruled and said count went to the jury. This count, however, predicated the defendant’s breach for failing to remedy the defect in the roof upon the averred fact that the preliminary repairs had been made as provided by said lease. The lease provides that preliminary repairs should put the roof in good condition, and until this was done, there could be no breach as the second covenant required nothing as to keeping in repair, until after the preliminary repairs “have been done as aforesaid.”

The plaintiff testified: “The roof has never been put in proper repair. * * * I can’t answer when the building first began to leak. It never stopped leaking since I went into it. It leaked when I went into it. * * * The roof was leaking when Mr. Lindsey bought it. To the best of my recollection, the conditions now prevail that prevailed at the time Mr. Lindsey bought the property from Mr.- Wagar.” This was. the plaintiff’s undisputed, evidence, as to whether or not the preliminary repairs were made and upon which the-defendant was entitled to the general charge, and if there was in giving or refusing any special charges!, it was error without injury. Nor did any of the evidence as to which exceptions were reserved tend to change or contradict this material fact, and the rulings-, in that respect could have been of no injury to the-plaintiff. The result is that the judgment of the law' and equity court must he affirmed. L. & N. R. R. Co. v. Johnson, 128 Ala. 634, 30 South. 580; Bailey v. Gary & Kennedy, 41 South, 672, and cases there cited.

Affirmed.

Simpson, Sayre, and Somerville, JJ., concur.