Buchanan v. Hieber , 78 Ga. App. 434 ( 1948 )

In certain of the grounds of the amended motion for a new trial, complaint is made as to various charges of the trial court, the foundation of the complaint as to each being the construction placed by the court upon paragraph 11 of the lease contract. I can not concur with the construction placed upon this paragraph by my brothers on this court.

In their opinion it is said that the clause in question means that, "if the leased premises are damaged by fire, or as the direct and proximate result of fire, but not rendered wholly untenantable thereby, the stipulated and agreed rent shall not continue to be paid in the same manner as before the damage, but thereafter and pending restoration of the leased premises, the rental shall abate in proportion to the extent of these damages." But what is the meaning of the word "damages"? It can not be held to mean that the rent would abate to some extent merely because the premises had been damaged in the abstract, as is the contention of the defendant in error and as is apparently the view of my brethren and of the trial court; for it can not be conceived that the lessor would agree to have the rent abate in part unless the lessee were deprived of something by the damage done to the premises by the fire. Therefore it must be held to mean either, (1) that the rent is to abate in proportion to the extent by which the lessee was deprived of the use of the rented space by the damage — partial untenantability of rented space; or (2) that the rent is to abate in proportion to the decrease in rental value of the premises caused by the damage. The clause mentions neither "partial untenantability of space" nor "decreased rental value"; therefore the clause can not be construed in the usual and common signification of its words, for to so construe it would be to reduce its meaning to a practical irrationality.

"The whole contract should be looked to in arriving at the construction of any part." Code, § 20-704 (4). The contract provides in clause 1: "Lessor does hereby rent . . to the lessee the following described space (hereinafter called premises): Store room approximately 20 x 42 feet." And the first sentence of clause 11 (the second sentence of which clause is here in issue) provides: "If premises are totally destroyed (or so substantially damaged as to be untenantable) by storm, fire, earthquake, or other casualty, this lease shall terminate as of the date of such destruction or damage, and rental shall be accounted for as between Lessor and Lessee as of that date." And the sentence of the same clause 11 which is here in question, and which immediately follows the sentence next above quoted, is: "Ifpremises are damaged but not rendered wholly untenantable by any such casualty, rental shall abate in proportion as thepremises have been damaged [not in proportion as the rental value has been damaged], and Lessor shall restore as speedily as practicable, whereupon full rent shall recommence." (Italics and brackets mine.) Therefore it appears that the intention of the parties was to lease mere store space; and there appears specific provision for an eventuality in which the space might become wholly untenantable as a result of casualty. On the other hand, there nowhere appears in the lease any expression in regard to the rent abating in proportion to decreased rental value, except as may be intimated by the eventuality provided in the case of total untenantability as a result of casualty. Why should the parties have used the word "untenantable" at all, in providing for the eventuality of damage to the premises which did not render the premises "wholly untenantable," if referring merely to damage in the abstract or decreased rental value rather than to damage which rendered the premises partially "untenantable"?

It may also be said that, except for the provision of clause 11 in the lease, even though the leased premises had been totally destroyed and rendered wholly untenantable by casualty, the rent contracted to be paid would not be abated. Code, § 61-113. Further, Code § 20-704 (5) provides: "If the construction [of a contract] is doubtful, that which goes most strongly against the party . . undertaking the obligation . . is generally to be preferred"; and the obligation to pay the contractual rent is upon the lessee unless he, by a preponderance of the evidence, shows himself to be entitled to an abatement therefrom within the meaning of the clause here in issue.

I think that Hieber was not entitled to any reduction of rent on account of loss of business or on account of the numerous other factors combining together to make up reduced rental value of the premises. He was entitled to a reduction only if the fire had deprived him of the effective, useful possession of a part of the leased premises, or space. If a part only of the premises became untenantable, then the measure of abatement of rent would be the proportion which the part of the premises rendered untenantable by the casualty bore to the whole of the rented premises. To illustrate, if one-third of the rented premises here became untenantable, the rent would be abated by one-third of the contractual rental price, and the landlord could collect only two-thirds of the stipulated rent.

To illustrate further, let us assume that, in the case of a longterm lease of a storehouse, the lease contained a specific provision that, "if premises are damaged but not rendered wholly untenantable by any such casualty, rental shall abate in proportion as the rental value of the premises is damaged by thecasualty." Next, suppose that in a few years, when a fire occurred which caused one-third of the premises to become untenantable, the abstract market rental value of the premises had doubled by virtue of business conditions and circumstances. In such a case, a contention that there would be no abatement or reduction in the rent because the rental value had so increased as to offset entirely the decrease in rental value caused by the damage would not be well founded, for the parties must be held to the terms of the lease irrespective of any increase of market value which was not within the contemplation of the parties at the time the lease was executed. Thus it appears that such a construction, if placed upon the clause here in question, would give rise to an interminable series of practical difficulties, so that it can not be thought that the parties could have contemplated or intended such meaning at the time the contract was executed. But, under my construction of the lease in question, if one-third of the premises should become untenantable on account of the fire, then one-third of the stipulated rental would be abated under clause 11. The reduction in rent was based on the deprivation of space, or the loss of the effective, useful possession of a part of the premises to which the tenant was entitled under the lease. If the tenant was deprived by the fire of all the space rented — no rent; if he was deprived of a part of the space — no rent for that part of the space of which he was deprived. The abatement of the rent would then be in proportion to what the untenantable space bore to the whole space rented.

The right of the tenant to an abatement of rent must not be confused with his right of action for damages in the event of a breach of duty on the part of the landlord; and my construction of the lease, of course, does not foreclose the tenant from recovering any damages accruing to him as the result of a wilful or negligent breach of duty on the part of the landlord.

I therefore concur in the judgment of reversal, but I can not concur in the construction placed upon this clause of the lease.