Keroes v. Richards

Mr. Chief Justice Shbpaed

delivered tbe opinion of tbe Court:

It is tbe settled rule of tbe common law that there is no implied covenant by tbe lessor that tbe leased premises are in good repair, or fit for tbe intended use. Viterbo v. Friedlander, 120 U. S. 707, 712, 30 L. ed. 776, 777, 7 Sup. Ct. Rep. 962.

"Wien the lessee covenants to keep old premises in repair, some authorities hold that his obligation extends no further than keeping them and returning them in as good condition as they were when leased. A better-established rule seems to be that his obligation is to first put them in reasonable repair, and then keep them so; particularly if the defects are open to observation and where there has been no fraudulent representation or concealment by the lessor at the time of making the contract. Payne v. Haine, 16 Mees. & W. 541, 545; Myers v. Burns, 35 N. Y. 269, 270; Lockrow v. Horgan, 58 N. Y. 635; Waddell v. De Jet, 76 Miss. 104, 110, 23 So. 437. In the case first cited it was said by Parke, B.: “The lessee was bound to put them in good repair as old premises; for he cannot 'keep’ them in good repair without putting them into it.”

The covenant in this case was not to keep in repair, but “that all repairs shall be paid by him, and that he will surrender the same at the expiration of his tenancy, in good order, ordinary wear and tear, etc., excepted.

If to keep in repair means that premises in need thereof at the time of the lease are first to be put in that condition by the lessee, then, for a stronger reason, a covenant to pay for all repairs would seem to bind him to pay for all that were needed at the time to render the building fit for its ordinary uses, in compliance with all valid public regulations having regard to health and safety. Consequently, when it was discovered by the municipal authorities that the drain connecting the house with the public sewer was in a defective condition, and the lessor, as owner of the premises, was compelled to repair it, the lessee was under obligation to reimburse him for the necessary expense, notwithstanding the fact that the defective condition existed at the time of the lease.

The ordinary meaning of repair is “to restore to a sound or good state after decay, injury, dilapidation, or partial destruction; to renew; to restore; to mend.” Webster, Diet. Now, had the drain been restored to the condition it was in when originally constructed, that is to say, reconstructed with material of the same kind, we are of the opinion that the necessary work would constitute repair, and not an improvement. The building regulations having been, meanwhile, changed so as to prevent reconstruction with the same material, and to require iron pipe instead, it is contended, on behalf of the appellant, that the new drain, constructed of different and more expensive materials, in compliance with the amended regulations, became an improvement, and was, therefore, not a repair within the terms of his covenant.

The question is one of difficulty, and the authorities are not in agreement in respect of its solution. In a case in the supreme court of Michigan, the lease was of a wooden building, with a covenant by the lessee to rebuild in case of destruction. After the execution of the lease and before the destruction of the premises, a valid public ordinance prohibited the erection of wooden buildings in the particular section, and required all construction thereafter to be of brick, stone, or other approved fireproof material. The action was brought by the lessor for breach of the covenant, and it was held that the lessee was not under obligation to rebuild with the more expensive material required by the ordinance. Cordes v. Miller, 39 Mich. 581, 33 Am. Rep. 430. No question was raised as to his obligation to pay, at least, as much of the eost of reconstruction as the erection of a wooden building would have amounted to.

In Payne v. Haine, supra, it was held that while the lessee was under obligation to put the premises in repair, and then to keep them in good repair thereafter, yet, as the building was an old one, the obligation extended no further than to keep the house in repair as an old building.

In Martinez v. Thompson, 80 Tex. 568, 16 S. W. 334, the lessor covenanted to keep the roof in repair. The lessee covenanted, with this exception, to bear all expenses of.repairing and improving the building, and made extensive improvements to fit the building for his uses. During the term the municipal authorities declared one of the walls unsafe, and compelled the owner and lessor to rebuild it. The rebuilding was of the same kind of material. No question was made as to the character of the material, or in respect of the power of the city to compel the reconstruction of the wall. It was held that the lessor could recover the cost of the new wall. None of those cases involves the particular question that is here presented.

Being of the opinion that the old drain was out of repair in. the ordinary sense of that word, we think that the covenant of the lessee made it his duty to reimburse the lessor to the extent, at least, of such a proportion of the entire cost of reconstruction as would have been incurred if it had been of the less expensive-kind of material used in the original construction. What this would be is apparently a matter of easy ascertainment. We cannot regard the effect of the intervening building regulations as discharging the lessor from all obligation.

For his failure to pay the charges for repair, and repudiation of liability for any part thereof, the lessor claimed the right to declare the lease at an end; and this action is for the recovery of the possession of the premises by virtue of his assertion of that power.

The question of his- right to recover the entire cost of the reconstruction of the drain with the required and more expensive material is not involved, but will arise in any appropriate-action that he may bring for that purpose.

All that we now decide is that the lessee was bound by the covenant to pay, at least, a proportional part of the cost of the repair of the drain; and that, having failed to offer to pay that proportion, and having denied his liability for that proportion, as well as for the whole, he violated the covenant and brought into exercise the right of the lessor to declare the lease at an end.

The lessor was, therefore, entitled to recover the possession of the premises, and the court was right in the judgment rendered. The judgment will therefore be affirmed with costs.

Affirmed.