Kirby v. Wylie , 108 Md. 501 ( 1908 )

The controlling facts in this case are practically undisputed. In March, 1901, Morris K. Wylie leased to Albert A. Brager the property known as No. 223 West Lexington street for the term of five years, beginning on the first day of January, 1905, and ending on the 31st day of December, 1909, at the annual rent of forty-five hundred dollars, payable in equal monthly instalments of three hundred and seventy-five dollars beginning on the 1st day of January, 1905. It was provided that the lessee should have the option of continuing the tenancy for another term of five years; provided he gave a written notice at least six months before the 31st of September, 1909, of his intention of availing himself of this option. The lease provided that the lessor should keep the roof of the building in good order and condition. This was the only obligation as to repairs assumed by the lessor, and in other respects the lessee covenanted to keep the premises in good order and condition. On the 8th day of November, 1902, Brager assigned his interest in the lease to Fred. M. Kirby, the appellant. Morris K. Wylie is now dead, and under his will and appropriate proceedings had in the Orphans' Court his reversionary interest in this property became and is now vested in his widow, Mrs. A.E.O. Wylie, the appellee in this case.

In April, 1907, Mr. E.D. Preston, the building inspector of Baltimore City, under the power conferred upon him by the charter and the ordinances of Baltimore City, condemned the building, because in his judgment it was in a dangerous condition and a menace to the safety of persons and property. In consequence of this condemnation the building was torn down.

In the lease from Wylie to Brager there is found this covenant: "If the said premises are destroyed or rendered untentable by fire, flood, the elements or act of God at any time prior to the commencement of this lease or at any time during the continuance of this lease, or any renewal thereof, the said lessor shall within a reasonable time rebuild and restore the same at his own expense, and if such damage or destruction shall take place during the continuance of the term hereby created or in any renewal thereof all rents reserved hereunder shall cease until the said premises are rebuilt or restored ready for occupancy again."

In May, 1907, the appellant filed a bill of complaint in the Circuit Court No. 2 of Baltimore City based upon the above-quoted covenant. The ground upon which the bill rests is stated to be that on or about the 15th day of April, 1907, during the continuance of said lease, the premises became and were rendered untenantable by the elements and the act of God, of which the said landlord had due and timely notice, and demand had been made upon the said defendant to immediately and within a resonable time rebuild and restore the same at her own expense; but that the defendant had refused and still refuses to abide by and perform the covenants and agreements on her part as she had covenanted and agreed to do. The specific relief prayed for was that the covenants and agreements in the said lease might be specifically enforced, and that the defendant be decreed to, within a reasonable time at her expense, rebuild the said store No. 223 West Lexington street so that the same might be restored to a tenantable condition. There was also a prayer for general relief. Testimony was taken in open Court upon the issues made by the pleadings, and from the decree dismissing the bill the plaintiff has appealed.

The evidence shows that the building was an old one; that it was originally a dwelling house, and that by the removal of partition walls, and other changes and alterations, which weakened the structure, it was converted into a store. From 1892 to 1900 a Mr. Eisenberg occupied the building as a dry goods store. He made extensive improvements to the property. He put in a new front extending from the pavement to the roof, and removed the third floor, thus making the front a two-story building. A Mr. Pickering, who followed Eisenberg as a tenant of the property, also made a number of repairs and alterations in the building, and thereafter, in December, 1902, transferred his interests in the premises to the appellant, who occupied the premises as a store. Before Mr. Kirby took possession of the building two iron girders had been placed above the roof from the east to the west walls of the front building, and iron rods from these girders had been extended down to support the stair framing and second floor. These iron girders had been placed above that portion of the building from which the third floor had been removed. The west wall of the building, extending back for some distance from Lexington street, was a four-inch wall, and the rest of the wall was nine inches in thickness. There was a one-story structure, in a very bad condition, attached to the rear of the building, and used as a receiving department. After the plaintiff had acquired the assignment of the lease from Brager he made costly improvements to the property. Among other things he cut through the walls between numbers 223 and 225 West Lexington street, and made three large openings on the first floor, and one opening in the basement.

In the report made to Mr. Preston, the Building Inspector, by J.S. Busick and C.E. Stubbs, two employees of his office, the reasons why the building was condemned are stated as follows: "No. 223, on roof of this building, there are two iron beams supporting stair headers below which have not sufficient bearing, these should be remedied at once; the roof girders are badly sagged and walls under one are cracked; there is also a break in east wall which seems to be a straight joint. The joists of the receiving department are 3" X 10" Va. 2' centres-18' 6" span, good for only 54 lbs. per square foot." Mr. Preston, when asked to state what he found the general condition of the building to be, replied: "Well, the general dilapidation and depreciation from age, wear and tear, and affected more or less by frequent alterations which had taken place." It is no doubt true, that decay and disintegration resulting from old age had weakened the strength and affected to some extent the safety of the building; but it is by no means clear that it should, or would have been condemned, or caused to have been taken down for that reason alone."

It is apparent from the evidence that the unsafe condition of the building was really due to the insufficient thickness of a part of the wall, and more particularly to the removal of the third floor, and to the iron girders placed upon the top of the building and the cutting by the plaintiff of the large openings through the walls on the first floor. The building was torn down by Mr. Bresman, and this witness, who was produced by the plaintiff, testified that the removal of the third floor weakened the building; that the taking away of this floor weakened the four inch wall, and that the heavy weight of the roof being on it the big girders pressed the wall out. Asked to state what caused the dilapidated condition of the building he said: "Well, taking out that floor in the first place of course weakened the building; the ceiling, I judge, was about fifteen feet high and taking the joists out weakened the walls to a certain extent and cutting those openings out, the four inch wall was not strong enough to hold the weight of the roof, and these two iron beams thrown across the roof twenty feet long, and these long rods down to the second floor was the cause of buckling this wall in the centre; it was only a matter of time for the whole thing to go down." This witness, having taken the building down, had the very best opportunity to learn the true causes of its unsafe condition. His evidence was corroborated in these particulars by witnesses Jones and Owens. Mr. Owens testified he thought that the weakening of the four inch west wall was mainly caused by cutting the large openings and the removal of the third floor.

Upon this state of facts the question to be decided is: Does this proof show that the premises were destroyed by the elements or act of God within the meaning of the covenant? If not the decree appealed against must be affirmed; because, confessedly, there is no other covenant by which the lessor assumed the obligation to rebuild, or restore the demolished premises. In the absence of an agreement to that effect the law imposes no such obligation on the landlord. This is a settled rule upon the subject. In Gluck v. The Mayor and City Council of Baltimore,81 Md. 315, it is said: "The common law has always thrown the burden of repairs upon the tenant, although it imposes no obligation on him to make them unless he covenants to do so.Taylor Land. Ten., sec. 327. A covenant is never implied that the lessor will make them. Moyer v. Mitchell, 53 Md. 176;Sheets v. Shelden, 7 Wall. 423; Gott v. Gandy, 2 Ellis Bl. 845; Pomfret v. Ricroft, 1 Wms. Saund. 321, 322N;Kremer v. Cook, 7 Gray, 550; Doupe v. Genin, 45 N.Y. 123. So unvarying is this doctrine that even a Court of equity will not compel the landlord to expend in making repairs the money received by him upon fire insurance policies after the destruction of the demised premises; unless he has expressedly agreed to so apply the proceeds. Nor will a Court of equity, when the premises have been burnt down and the landlord has collected the insurance, prevent him from suing for the rent, even though he refuses to rebuild, if he be under no covenant to repair."

It appears to be settled by the authorities that damage by the elements and damage by the act of God are synonymous, or convertible terms in the law of leases. The expression "act of God" in its broad and comprehensive sense includes many acts which the law does not recognize as sufficient to exempt from responsibility. To the Christian mind many events and occurrences may be ascribed, either mediately or immediately, to an act of God, which the law would not regard as such. The legal meaning of the term is not perhaps susceptible of a definition which will include every case to which it may be applied. There appears, however, to be an unanimous concurrence in the authorities that an occurrence which is directly produced, wholly or partly by the intervention of human agencies, is not an act of God within the meaning of the law. In 1 Amer. Eng. Ency. ofLaw, 584-585, will be found a number of definitions of this term, and instances of its application, and in every case the event, or occurrence declared to be an act of God was "something superhuman in contradiction to the act of man." It was said by this Court in Fergussen v. Brent, 12 Md. 31, that, "it is difficult exactly to find, in all cases, what is an act of God." "By the act of God, is meant a natural necessity, which could not have been occasioned by the intervention of man, but proceeding from physical causes alone, such as the violence of the winds, or seas, lightning, or other natural accidents;" per LORD MANSFIELD, in Forward v. Pittard, 1 Term Rep. 27; 2 Greenleaf on Ev., sec. 219. This definition is about as accurate and specific as, perhaps, any that could be given. It excludes all circumstances produced by human agency, so that if divers causes concur in the loss, the act of God being one, but not the proximate cause, it does not discharge the carrier."

As we have seen from the examination of the evidence that many of the causes which led to the condemnation and removal of the building were due, in a large measure, to changes and alterations made by the plaintiff and others, it cannot be successfully claimed, under the principle stated, that the building was destroyed by the elements, or the act of God, within the meaning of the law, and upon this ground alone the decree should be affirmed. But if it be conceded, that the destruction of the building was caused by gradual decay from natural causes, we have found no case, nor have we been referred to any, where it has been decided that a loss resulting from such a cause was an act of God, within the meaning of the law. According to the adjudged cases the Courts have held that such an expression has reference to some sudden, unusual, or unexpected action of the elements.

The case of Van Wormer v. Crane, 51 Mich. 363, does not support the contention of the appellant, because the question as to whether ordinary decay resulting from old age was an act of God was not presented for decision in that case, although there are some general expressions in the opinion which indicate that the Court might have so held had the question been directly in issue. But that question did not lie so squarely in the pathway of the judgment that the case could not be adjudged without deciding it, and, therefore, it cannot be accepted as a judicial precedent upon the point. The loss in that case was caused by a fire, and the Court said that "no fault in connection with it is charged upon the defendant, and it seems to be taken for granted on both sides that the fire was accidental. We may, therefore, assume that the fire was one which occurred without traceable fault, and that it is to be classed as a calamity for which no one is responsible, except as he may have expressly undertaken to do so."

In Harris v. Drake, 40 Minn. 106, the Court laid down the safe and reasonable rule upon the subject: "Every case of damage to or destruction of human structures, not caused by animal force, may in one sense be said to be caused by the elements, as, for example, ordinary, gradual decay, but it would hardly be claimed that such a case would be within the meaning of the provisions of the lease. Or suppose, because of the manner of its construction, it should be proved, when winter arrives, that the basement was untenantable because of cold, it would scarcely be urged that this case came within the terms of the lease. We think that the language of the lease refers only to some sudden, unusual, or unexpected action of the elements occurring during the term, such as flood, tornadoes or the like; extraordinary disasters, not anticipated by either party, the efficient causes of which originated after the term began, and which either destroyed the building, or left it in a materially and essentially worse condition than it was when leased." This rule has been applied by the Courts of New York, California, Connecticut and Mississippi. Being of opinion, for the reasons stated, that the appellee, under the facts disclosed by the record, is not bound by the covenant contained in the lease to rebuild the destroyed building, the decree must be affirmed.

Counsel for the appellant contended that the bill ought not to have been dismissed even if the Court found that the appellee was not bound to rebuild; but that there should have been a decree in his favor for the expenses incurred by him in removing the condemned building. But whatever the rights of the appellant might be in this respect they cannot be determined in this case; because there is no evidence in the record that he had expended any money in removing the building. We have no power to remand the cause except from matter appearing upon the record at the time of the reversal or affirmance of the decree from which the appeal is taken. McCann et al., Administrators, v. Sloane Calwell, 26 Md. 82.

Decree affirmed with costs to the appellee above and below.