Kohlman v. E. J. Hart & Co.

WILLIAM A. BELL, JUDGE.

This le s suit by plaintiff as lessor of oommerolal Nos. 608-610 Chartres Street in this olty under written lease, ¿mount olaimed is for three months rent, repr.eihsee rent notes for $76.00 eaoh, whioh notes bear inter- * tifo. The written lease also provides that in case it should bfloome rifeoeesary to place the claim arising from said lease in the hands of an attorney for collection, lessee should pay as counsel fees an additional sum of 10$. The lease began on the 1st of October, 1921 and the leasee paid monthly rent as it beoame due, but . finally refused to pay the rent for the monthisued upon, í#~wit: January, February and liaren of 1921 for the reason that lessee olaimed that the roof of the leased premises, particularly the main building leaked to such an extent that it wes necessary after putting the leBsor in default to have the roof on said building as well as of the, out-building on said premises renewed at the oost of $224.00 or $1 lesa than the total rent for the three months above stated. When sued for the unpaid rent, defendant answered by admitting the lease and its liability there under but denied liability for the amount sued upon, claiming that .because of the forced repairs after putting the lessor in default, and because of the lessee having paid for said repairs there was nothing due to the lessee except $1 which was tendered to lessor or his agent,but refused. Further answering it denies that it was necessary to place .the note sued upon in attorney's hands for collection.

There was judgment in the Trial Court in favor of plaii tiff for the sum of forty-one dollars ($41.00) with 8$ interest there* from April 1, 1921 and for 10$ attorney's fees on principal and inter* the Said judgment recognizing lessor's lieji and privileges The lesso: alone has appealed from this judgment.

The evidence in this case convinces us that the roof of the main building was in a leaking condition, and that under the law as well as the terms of the contract of lease that the plaintiff was obligated to repair the same. '.Ve do not consider from the evidence before us that this obligation devolved upon the lessor in respect to the shed or out-building of the rented premises.

The lessee's disbursement of ';.225.00 was for an entire new roo'f on both the main and out-building on the previses, and wes incurred without notice of the proposed disbursement, without any bids being called for, and q$¡& a month and a^íaí^aíÉfeLé^njti float ion to the lessor that premises were in leaking oondition. The ri.'ht given the lessee under the Civil Code to make such repairs are predicated only upon putting the lessor in proper default. There are two questions to be determined in this case. First, whether the lessor was put in proper default, and secondly whether the repairs made by the lessor was such .as oould he considered necessary and reasonable under the circumstances of the esse.

The roof of the main building was put in repair under a two year guarantee, about one year before the lease in question arose and it appears that frequent leaks in the roof occurred before the lease in September and after the lessee had taken possession in October. In every instan^ however, the lessor, when notified of these leaks gave the matter his prompt attention, hut upon further trouble with the roof it appears that the lessee wrote a letter on Ilovember 6, 1920, to lessor notifying him that the roof was in bad condition •and that the leaks had not been remedied, because former repairs on said roof had practically been of no benefit, and finally advising lessor that unless he took immediate stews to repair the roof extensively, that the work would be done by lessee, and the price thereof '-edueted from the rent. The letter stated that this written notice was to apply to the out-building also. On the same Krj lessor replied to the effect that his architect and contractor hr..', faviced him that the roof was at that timo free of all leaks, that ir ray event he would not agree to repair outer building or shed, and t ... • he had never made any agreement with lessee to re .air the .■■oof o the shed, but that if the roof of the main building s’-ould she-» any tmaency to leak he, iessor, would immediately,upon lessee's advice,have the matter corrected.

Prom date vf this correspondence no further requests were made upon the lessor nor did the le.ssoe in any manner question the contents of lessor's letter of Jbvemter íth. Mle record shows that on n November 13, 1920 the lesrc.c' ;; '■ tcrucy wrote lessee the following ^ advice found in the recod'd oi, th ■ book of lessor's letter of 1,'ovember 6, 1920, and reading af ioj]owe.-

11/13/20

"Mr. Iieovy.

."ave y r ran make an investigation of repairs access .try, "•«•it a reliable party and have him give you ■ r.r'tten report — price also— inform him you will - him as witness if necessary— Then nroceed to hi v- verk done — fay no further attention to 'lx. ZZc. 1r.au — lieep this letter as acknowledgment tiat he is i-. default.

S. V. ?rove»S£l,"

le are of the opinion that the lessor was not put in ie,.cl or pr.per default concerning the leaks in the roof, nor does any of the eviderefi in this case impress us with the fact that the lessor was in cry manner negligent in having or attemptiig to have the bad condiiicn of the roof thoroughly rectified, are also of the opinion i’-'.t (.!» lessee was not Justified in havin, enti e now r.,of placed upon i ip read;. .rad the out-building, particularly, was he not Ju fified ?r. incurring tnis expense without first notifying th lessor >:$ to the nature of the proposed roof, the extent oí tnc r<-pairs and the contract urioe tnereof,after proper bids dul- submitted. In other rr "dfc all the circumstances of this cas? imoel'ed the lessee to deal ft’cl \ii Vh the lessor and in such meaner a..; ¿/"would hove expected I vos->r Vo deal with Mo. c/7

>0 testimony as we read it in this ease, imp’"esse#'’ us v. ’ th '.no fret tl-;!, the contract price under which the lessee renewed the roof on ti • '.-.uildinp is excessive. The contractor who did the ntí "•'i ti fJ ‘hat the roof on the main building approximates twentyfiv~ squares ; v.essureme'it, and that the slate surfaced, rolled roofing materia] .; -c-d by him cost about J185.00 for the mein roof, or re. ho other bids were received and lessee allowed ..is own price. Thor-, was no evidence offered by lessee t.-:ic price was customary or reasonable, but the unoonstirr.ony qf lessor's contractor — s man of 22 years ex-»ne roofing business — &0máA that he had just, prior-to *7.4 ) ‘ a - rc c ‘ * to to -r.ow v r -.ad:',etc.. •c.rj e-;ct.-e tri. 1 oi this case, completed a similar roofing job in this oity, : t cost :i about -¡¿2.00 per square, be think thereiore that the lessee s .cul-i ,o - be credited with more than v75.co for the work done on the . -iloing, especially as we are impressed vith the evidence going •v <■ taciish only repair ■ orh^rather than entire nev work should f.v ; be ione.

"'‘e- -j eiit" due by lessee for -.•« „t.-. th o' January 1921 ‘r. af f 7E.00 shou]-i „e ri -Vly end "pi l. y rfr-set by the amount wow- reco'-iz-" by iv for eopoirs * ■ t-.e r.-of, t. "it: .,75.00. It -‘a ‘‘->e ’efov? or. ftsu, adjudge •. and'decreed that the r-idrment aooee.’ed fr-:m. tg a.-d *’-0 g; me hereby is amended so as to incre'se sci^ ji dgment i:i favo, oí t^ci" ¿ií f d.i egsir.st defendant f"r i-o ru ci Icrtj-or.i 1’oT I- r (-.41. -0 ! to tl--. o’Vi if Cue 1'unu.rod c:.¿ ill,. Joii:j.s ( li. - th eig.- re- cert i:.t. rest per eo;- - .n 2 -v.-ity- 'iv. • 'l.'-j Rollara j'r.-a ,-arcr. 1st, 1221, end o.j - .- “ y-ii\3 1"',’ no,.'a ■- X".-. '..vil let, 1921, arü ten por cent (1C;?! cjiis-’j. > 'nciptl ,nt ■- attorney® 2,e(, and wit/, re„c.$n..t:,i n ... ~e t; .to... z 1 '¡.;rrh lien :wivile.-c iuor> all : * '< co:.ip ..a in r-.i ’f t-.'-c. premfs-j, ant r~ --eats in. tc.-h Joi~U.

J. r:'J- ’¡.'.’LL’JKh -'.lib .'.51 1 -, 0.

January 22, 19:.,,