Fleming & Bowles v. King , 100 Ga. 449 ( 1897 )

Fish, Justice.

King rented to Fleming & Bowles a storehouse in the ■city of Augusta, for one year beginning Oct. 1st, 1890, with privilege of three years, at $2,500 per annum. Soon after Fleming & Bowles went into possession, Craig, King’s .agent, called on them for rent notes. They declined to give them, unless King would sign a rent contract which they had drawn up and signed, containing a fire clause — that is to say, a clause protecting the tenants against liability for future rent in the event the storehouse should he destroyed by fire. Craig submitted this proposed contract to King, who without signing it returned it to. Fleming & Bowles, with the message, as Craig testified, that he (King) and Mr. Bowles had had interviews and written enough and he didn’t ■care to sign it — Bowles testifying that Mr. Craig said, “that Mr. King said that he did not see any use in signing it, that he had no contract with any other of his tenants.” Kear the end of the second year, to wit, Aug. 26th, 1892, the storehouse and contents were entirely destroyed by fire. Fleming & Bowles at once opened a store at another place. (The rent was regularly paid, early in each month for the previous month.) On the day of the fire King had a fence built around the premises, and, two days afterwards, he had the walls pulled down, which was all done by order of the fire wardens of the city, to insure safety to the public. Soon after the walls were pulled down, King began to have the bricks cleaned. Fleming & Bowles did not give King any permission to build the fence, pull down the walls, or to clean the brick, nor did they make any objection wben they saw the work being done. They paid the rent to Aug. 2 6th, 1892, the da,te of the fire, hut refused to pay any rent after the fire. King sued them for $241.93, 'for rent from Aug. 26th, 1892, to Sept. 30th, 1892, inclusive. They pleaded, sub- • stantially, (1) that th© written instrument of lease, presented by them to the plaintiff for execution, to the terms of which there was no objection, contained a fire clause, and that King was fully notified of what they understood the ■ contract to be, and that he was bound in law by that understanding; (2) that there was a- local custom in Augusta to the effect- that tenants were not required to pay rent for buildings after destruction by fire; (3) that King’s use and ■ occupation of the premises, in building the fence, pulling ■ down the walls and cleaning off the brick, amounted in la.w to an eviction. There was a verdict in favor of King for the . amount sued for, with interest. Fleming & Bowles moved for a new trial, which was refused, and they excepted. The .grounds of the motion to- be considered were, (1) that the evidence shbiwed such conduct on the part of King as .amounted in law to acquiescence in, or an acceptance of the terms of the written lease presented to him by Fleming .& Bowles; (2) that the court erred in refusing to allow proof . of the existence of a local custom in Augusta, to the effect that tenants are not expected or required to pay rent for buildings after they have been destroyed by fire; and (3) that the evidence showed such use and occupation of the premises by King as amounted to an eviction.

1. After Fleming & Bowles had agreed to rent the storehouse for one year-, with the privilege of three years, at •'$2,500 jDer annum, and after they had gone into possession under such contract, they submitted t'o King, for his signature, an instrument containing a clause releasing them from the payment of future rent, in the event the house should be burned. The plaintiff never signed the instrument, but returned it to the defendants with the message, “that he and Mr. Bowles had had interviews and written enough, and he didn’t care to sign it,” or “that he did not see any use in signing it, that he had no contract with any other of his tenants.” Plaintiffs in error contend that this amounted to an .acquiescence, in law, on the part of King in the terms of the iirist-.wrnTP.-nt., 'because he made no objection to signing it on account of the fire clause, but simply said, in substance, that there was no necessity for signing it. It seems very clear to us that the return of the written contract of lease by King to his tenants, with a statement to the effect that there was no necessity for signing it, instead of implying an acceptanee of its terms by him, very forcibly indicated-a refusal on his part to agree to release the tenants from future rent in case the storehouse should he destroyed by fire; and he was not hound by any of the stipulations in the proposed contract which hi© refused to execute-.

2. The court below did not err in refusing to allow plain- ■ tiffs in error to prove the existence of a local custom in the city of Augusta, to the effect that tenants are not expected or required to pay rent for buildings after they have been destroyed by fire. A custom makes the law of a contract • only where there is no law governing it; it does not supersede the law. A local custom cannot have the effect of depriving a contracting party of rights secured to him by a positive statute, unless he expressly so agrees. There was no agreement that a custom should enter into the rent contract in this case; the tenants did not rely on it, hut sought. to make an express written agreement on the subject, to which the landlord refused to assent, showing thereby that ■ instead of contracting with reference to the custom he repudiated it.

3. The law is well settled in Georgia, that the tenant of a rented house is liable for the stipulated rent to the end of his term, although the house, before the- expiration of such term, be destroyed by fire, unless the landlord does some act which in law amounts to an eviction of the tenant. Civil Code, §3135.

4. The erection of the enclosure around the rented premises and the pulling down of the walls after the burning of the building, ¡these things being done- by 'the landlord under the orders of-the fire wardens of the city of Auguste, for the purpose of insuring safety to the public, were not snob ants as amounted in law to an eviction of the tenants. To constitute an eviction which will operate as a suspension of ¡rent there must be either an actual expulsion of the tenant, or some act of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises. Upton v. Townsend, 84 Eng. C. L. 30. The erection of the enclosure and the pulling down of the walls were not done with the intention of interfering with the possession of the tenants or of depriving them of the beneficial use of any portion of the rented premises. The landlord was simply complying with the orders of the municipal authorities, to avoid serious danger to those passing near the cellar walls. Even without such orders it would have been the duty of the landlord to have the cellar and walls, which were in dangerous proximity to a public street, put in such condition as would have afforded reasonable immunity against the danger which might otherwise probably have resulted from their existence; and such being his evident purpose, the enclosure of the cellar and tearing down of the walls of the burned building did not constitute an eviction.

5. Ebr did the mere entry upon the premises without the tenant’s express consent, and having the brick of the burned house cleaned, amount to an eviction, it appearing that the tenants, although aware that this was being done, made no objection to the same. These acts of the landlord were not such an impairment of the beneficial enjoyment of the rented premises -by the tenants, or such a disturbance of their possession, as to constitute an eviction. Even if the landlord had no right to enter and have the bricks cleaned, his doing so amounted only to a trespass, as hie evidently had no intention to interfere with any substantial enjoyment of the premises by the tenants; and it is well settled that it requires something m-ore than a mere trespass to constitute an eviction. Were it otherwise, the landlord would forfeit his rents by the most trivial acts of trespass, and leave Ms tenant in the-unimpaired enjoyment of the premises for the term. The evidence in the case strongly indicates that the tenants only rented the storehouse from the landlord, and, in that case, when it was burned their whole interest in the property was. gone, and the landlord had the right to re-enter, not only for' the purpose of enclosing the cellar, pulling down the walls, and cleaning the -brick, but for the purpose of rebuilding,, without heing guilty of an eviction. Alexander v. Dorsey, 12 Ga. 12; Pope v. Garrard, 39 Ga. 471.

6. The charges complained of, substantially agreeing' with the rulings herein made, were not erroneous; the verdict was in accordance with the law and the evidence, and ■the motion for a new trial was therefore properly overruled.

Judgment affirmed.

All the Justices concurring.-