66 N.J.L. 261 | N.J. | 1901
The opinion of the court was delivered by
This is an action of ejectment instituted by the plaintiff in error, the owner of a certain hotel property situated in Atlantic City, against the defendant in error, who is in possession thereof, under a written lease for a term of five years, dated the 15th day of July, 1898. During the
By section 1 of the supplement of March 5th, 1874, to the “Act concerning landlords and tenants” (Gen. Stai., p. 1923) it is provided that “whenever any building, erected on leased land, shall be injured by fire, without the fault of the lessee, the landlord shall repair the same as speedily as possible, or, in default thereof, the rent shall cease until such time as such building shall be put in complete repair; provided, always, that this section shall not extend to or apply to cases where the parties have otherwise stipulated in their agreement of lease.”
The propriety of the action of the trial court, therefore, in directing a verdict for the defendant must depend upon whether the parties have, in their agreement of lease, so stipulated that their respective rights and obligations are not regulated by the statutory provision quoted.
The only parts of the lease which have any bearing upon this controversy are as follows:-
“Sec. 3. That the lessee will not knowingly do or commit, or willingly suffer to be done or committed any act or thing contrary to the conditions or stipulations of the policy or policies of insurance on the premises; and that he will peaceably deliver up the premises hereby demised at the end of the said term, in the same good order and condition that he received the same, reasonable wear and tear, and damage by accidental fire, alone excepted.
“Sec. 17. All repairs are to be made and paid for by the*263 said tenant and lessee, including water rent, and it is expressly stipulated, understood and agreed that the said lessor shall be exempt and relieved from the making of any repairs, alterations, additions or improvements, during the continuance of this lease, the said lessee hereby covenanting to make and do the same.”
The covenant of the lessee contained in the seventeenth section of the lease, standing alone, requires him to make all repairs to the premises, including those made necessary by their partial or total destruction by fire. Wood L. & T., §§ 369, 370, and cases cited. The third section of the lease relieves him from this responsibility, providing the injury to the premises results from a fire which is accidental. This latter clause is contained in the printed portion of the lease which was used by the parties, while the seventeenth section is inserted in writing. The ordinary rule of construction, where the sections of an instrument are inconsistent, is that those which are written will control, and those which are printed will be disregarded, the presumption being that the latter have been left in through oversight. Ball v. Wyeth, 8 Allen 275, 278. It is insisted on behalf of the plaintiff that this rule is applicable in the present case, and requires the rejection of the limitation on the lessee’s liability to repair contained in the third section of the lease. But the rule referred to does not prevail where the various provisions of the instrument, although apparently inconsistent, can be reconciled and all given effect. If all the provisions can be retained and interpreted together, none are to be rejected. Ball v. Wyeth, supra.
We think that this instrument can be fairly interpreted so that both of those provisions can be retained; and that, by its true construction, the lessee is bound to make all such repairs as may be necessary for the preservation of the premises in the condition in which he received them from his lessor, except those which are required by reason of ordinary wear and tear, or by reason of accidental fire; and also such extraordinary repairs, alterations or improvements as the parties may agree shall be made during the continuance of the
The lease which was construed in the cited case varies from that now before us in this respect: that in the former instrument there was a provision that the lessee should keep the property insured against fire, at his own expense, for the benefit of the lessor, while, in the latter there is no stipulation with regard to insurance, although it is apparent, from the provision in the first clause of section 3, that it was the intention of the parties that the premises were to be kept insured. We do not think, however, that the fact that the insurance premiums were to be paid by the lessor, instead of the lessee (if such is the fact in the present case), justifies the rejection of the provision relieving the lessee from liability to make such repairs as are rendered necessary by reasonable wear and tear, or by accidental fire.
Having reached the conclusion that the covenant of the lessee contained in section 17, to make all repairs, alterations, additions or improvements to the premises, is limited by the provisions of section 3, and does not embrace such repairs as are made necessary by reasonable wear and tear, or by acci
Finding nothing in the stipulations of the lease which relieved the lessor from the obligation imposed upon him by the statutory provision hereinbefore referred to, to rebuild the portions of the demised premises which have been destroyed by fire, or, in default thereof, to forego his rent, we are of opinion that the judgment below should be affirmed.
For affirmance — The Chief Justice, Van Stoked, Garrison, ' GuMMERE, CODDINS, FORT, HENDRICKSON, BoGERT,
Adams, Yredenburgh, Yoorhees. 11.
For reversal — Garretson, Yroom. 2.