Lesser v. Kline

The first seven reasons of appeal are all concerned with the fundamental question involved in the construction of the lease; the eighth reason of appeal involves the question as to the admission of testimony as to the existence and adjustment of insurance upon the premises in favor of defendant; the ninth is a general assignment of error, that judgment should have been the other way, which is obnoxious to the provisions of General Statutes, § 5837, requiring specific assignments of error. The tenth reason of appeal relates to corrections of the finding which the trial court refused to make.

It is claimed by the plaintiff that under the lease the defendant was required to make such repairs as were made necessary by the fire, and sufficient to put the premises in proper condition for use and occupation by the plaintiff for the purposes of his business. At common law the landlord is under no obligation to make repairs upon leased premises; any obligation in that regard must arise from contract or statutory provision. Hatch v. Stamper, 42 Conn. 28, 29; Gallagher v. Button, 73 Conn. 172, 176, 46 A. 819; Rumberg v. Cutler, 86 Conn. 8, 84 A. 107. The question before us is whether the lease in question created rights in the plaintiff not recognized by our common law. The special provision as to repairs contained in the lease amounts to just this, that the defendant added to his common law obligation the burden of making exterior repairs, replacing plate glass windows, carrying insurance for that purpose, and also of carrying an elevator liability policy. The plaintiff added nothing to his common law duty to repair. He assumed nothing when he agreed to make needed and proper interior repairs to the building, whether needed for his own convenience or for keeping it in proper repair so as not to commit waste. A reasonable interpretation of this provision in the lease is that when the landlord agreed to make certain repairs not required by law outside of a special contract, he desired and intended to limit and make definite his undertaking and it was provided that the plaintiff should make all interior repairs.

The plaintiff insists that this contract did not bind him to make more than ordinary repairs, and has no application to the serious situation arising from a fire. We may adopt this construction, and still the contention of the plaintiff is unsound. We may concede that repairs of damage arising from fire were not within the interior repairs contemplated by the contract, but still the plaintiff was held at common law to make them, except as relieved by General Statutes, § 5101, which provides that when leased property becomes untenantable for some reason not the fault or neglect of the tenant, he may be relieved from payment of rent if he continue to occupy, until the landlord shall restore the premises to tenantable condition, when he shall resume payment of rent, or, if he so elects, he may quit possession in the meantime. Under this statute when the damage by fire occurred, the plaintiff if the premises became untenantable had the right to continue in possession without payment of rent, or to quit possession and resume it after proper repairs had been made, and then the original obligation to pay rent, suspended only by the statute, would be revived. Miller v. Benton, 55 Conn. 529, 547,18 A. 678. The right conferred by statute upon plaintiff was to stay upon the leased premises and refuse to pay rent, or to get out and refuse to pay until they were made tenantable.

The statute in question has been before us frequently for construction, but the claim has never before been made that it imposes upon the landlord the duty to repair. He may do so within a reasonable time, and the tenant is then bound to make payments of rent. The statute can in no way be twisted to confer upon the tenant the right to go ahead and make repairs at the charge of the landlord and collect the cost. And no burden to pay for loss of business, good will or diminished rental value, is placed upon a landlord. He simply loses his rent, unless and until he restores the premises to a tenantable condition. A New Jersey statute very similar in terms to our own has received such a construction. Sayre v. Roseville Motor Co.,85 N.J.L. 10, 91 A. 596.

It is further urged that the customary provision in this lease providing for the delivery of the premises up to the defendant at the conclusion of the tenancy in as good condition as at the time of the commencement of the lease, "ordinary wear, fire and other unavoidable casualties excepted," raises an implied contract on the part of the landlord to repair in case of fire. Clearly such is not the intent or proper construction of this clause. The words just quoted are to be taken in connection with the words occurring earlier in this paragraph of the lease, that the tenant "will commit no waste," and are designed solely to protect the tenant from impeachment of waste. It is a standard clause inserted at an early date in ordinary leases in order to guard against the possible application of certain strict rules of the English common law bearing heavily upon a tenant, with reference to his duty to rebuild structures destroyed by fire, and the effect of such destruction upon his continued obligation to pay rent, a very necessary provision until the matter was settled by the statute of 1859, now General Statutes, § 5101. A covenant to repair will not be implied. It must rest upon express contract.Gulliver v. Fowler, 64 Conn. 556, 566,30 A. 852; Witty v. Matthews, 52 N.Y. 512; Liebmann v.Aldhous, 105 Misc. 728, 173 N.Y.S. 553; Kennedy v. Watts, 142 Mo. App. 103, 105, 106, 125 S.W. 211;Turner v. Townsend, 42 Neb. 376, 378, 60 N.W. 587;Clifton v. Montague, 40 W. Va. 207, 21 S.E. 858.

The view which we take renders it unnecessary to consider at length the claim that by payment of rent under protest, the plaintiff so protected himself that he could continue in possession, and if repairs were not made by the landlord, recover back his payments. By such protest his rights were not enlarged, nor were the obligations of the defendant increased. Leavitt v. Fletcher, 92 Mass. (10 Allen) 119.

If the claims of the plaintiff for damages were valid, the finding contains no facts furnishing the means of properly assessing damages covering the cost of reasonable repairs and the time required to make them; nor does it appear therefrom what part of the $1,700 expended for restoration of the interior was necessitated by the fire; no proof is made of amounts covering loss of business or loss of profits.

The eighth reason of appeal is concerned with the claimed error of the court in rejection of testimony as to the collection of insurance by the defendant covering loss occurring to the interior of the building. This testimony was offered as the foundation of a claim that this sum received for insurance should be applied to the repair of the damage to interior by reason of the fire. The trial court was not in a position to entertain such a claim. While there is a prayer for equitable relief, that the defendant restore the premises to a tenantable condition, on which such a claim might be held to be before the court, no facts are alleged in the complaint as to the collection of insurance or its amount. There is nothing on which to found the relief claimed. The evidence was properly rejected by the trial court, and its refusal to correct the finding in regard to the insurance, asked in paragraph four of the motion, was also correct.

The first correction asked for, as above recited in the finding of facts, was properly refused. The lease contains a covenant to carry out all orders made by public authorities of city, county or State, as to repairs or alterations. There is nothing in the record to show that any orders were made by any public authority.

Paragraph two of the motion to correct, under the view we take of the case, is immaterial. It in no way shows any relation of the inability to use a portion of the building to the value of the complete use of the building, and, as we consider the case, has no bearing on any recoverable item of damage. The court properly overruled the remaining requests to correct. From what we have before said, it appears that loss of rental value is no proper ground of recovery.

There is no error.

In this opinion the other judges concurred.