162 Ky. 622 | Ky. Ct. App. | 1915
OpinioN op the Court by
Affirming.
These suits were instituted in the Pike Circuit Court; the one is that of J. D. Bentley against Ballard & Herring, and the other that of J. D. Bentley and Se-rilda Bentley, his wife, against Ballard & Herring. These suits were consolidated by an agreed order in the circuit court and heard and tried together. In the first named suit J. D. Bentley claims that, under a verbal contract, he let to rent to Ballard & Herring a store house and a portion of a bam and some adjacent lands, and under the contract of rental, Ballard & Herring-agreed that they would take good care of the premises and would be responsible for all damages that might occur to him during their occupancy of the premises, and would leave the premises at the end of their term in as good repair and condition as they then were, and just as they then were; that thereafter Ballard & Herring erected at the rear of the store room a building which they used for a cook room and kitchen; that they negligently and carelessly constructed the cook room, and put the stove pipes through the roof of the house without any flues in which to place the pipes, and that the roof of the house was made of tar paper and the walls covered with paper, and that the improper and negligent manner in which they had constructed the house and located the stove pipes, and negligent use of the
In the suit of J. D. Bentley and Serilda Bentley against Ballard & Herring, substantially the same allegations were made in the petition as to the contract between J. D. Bentley and Ballard & Herring, and it was further alleged that Bentley and his wife, as partners, were the owners of a stock of goods placed in a store house near to the one rented to Ballard & Herring, and that by reason of the gross negligence and carelessness of the defendants in the construction of the cook room, and their negligence in their use of the building, that the building caught on fire, as stated above, and that the stock of goods owned by them was consumed by the fire, and that same was reasonably worth $3,000.00, and asked, to recover a judgment for that sum against Ballard 8s Herring.
Ballard & Herring filed answer in each of these cases, in which they traversed the allegations in the petitions regarding the terms of the contract, and denied any negligence in the erection or the use of the buildings, and further plead, that after they had erected the cook room, that the plaintiff, J. D. Bentley, against their consent, erected the store room in which the goods, were consumed, upon land which he had leased to them, and built his. store house very close to their cook room, and that by reason of that fact the store house in which the
The appellants asked the court to give an instruction to the jury which, in substance, was, that if the jury believe from the evidence that the appellees negligently and carelessly erected a cook room, and by reason thereof said cook room caught on fire, and the fire was communicated to the store buildings, and they were burned, to find a verdict for the appellant, J. D. Bentley, in their discretion, not exceeding $2,900.00. The court refused to give this instruction, to which the appellant excepted, and upon its own motion gave instructions A, one, two, three, four, five, six and seven. To the giving of all of these instructions the appellants objected, and their objections being overruled, took proper exceptions. The appellants filed grounds in each of these cases, and moved the court to set aside the verdict of the jury, and to grant a new trial, which motion the court overruled in each case, and the appellants took exceptions thereto, and they now appeal to this court.
In order to determine what the court should have done upon the trial of these cases as regards instructions to the jury, it becomes necessary to make a statement of what the evidence conduced to show, and we will first state the testimony adduced for the appellants, so far as same may be necessary for the purpose in hand.
The appellant, J. D. Bentley, stated that he had first leased the old store building and a portion of the barn, and certain lands adjacent thereto, to appellees for the period of one year, and entered into a written contract with them; that a.t the end of the time for which the property had been leased that he made a new contract for the letting of these premises to Ballard & Herring,
“Q. After twelve months expired was there another contract entered into? A. Mr. Ballard came into my store there and asked me to stay longer in the property, that he wasn’t done; I told him under the conditions he couldn’t stay; he asked me why. I told him he hadn’t done what his first contract said; that my place was all littered up, and the barn, I couldn’t get to it to feed, and we had had a fire in a room, and I didn’t know when they would have another one in the condition the cook room was in. Q. Tell the jury if there was another contract entered into? A. He turned around to Mr. Buckner and told him to go ahead and clean up the lot, told him to fix up the barn where the holes were around it, and to clean up the place as he was to and get the litterment all cleaned up. I told him if he would leave me as I was then he could stay, and he said alright, he always done that wherever he went; he would leave me as I was, and I could make my bill out, and the rent when he left. * * * Q. I believe you say that the written contract made out with Ballard & Herring expired? A. Yes, sir; about the time it was out, he came in, a day or two before or at the time, he came in the store and named it, and said he was going away about the time it was out, and told me he was going away, and that he wanted to stay there further until he got done, that he wasn’t done yet. Q. And he further said to you he would leave your property in as good shape as he found it? A. I told him the conditions he could stay, that the first contract hadn’t been filled, that the bam wasn’t cleaned up; he says, yes, I will leave you just as good as I find you, I always do that wherever I go-”
On cross-examination the same witness made the following statements:
“Q. "What 'did you ask him? A. Mr. Ballard came in and asked me about staying, and I told him the conditions he could stay; he asked me why; I told him he hadn’t complied with the first contract about the bam. I couldn’t get to it to feed my stock, and I couldn’t cul tivate the land; and I says, you have had one fire down there, and you may have another one, this cook room may burn us up at any time.”
“Q. How did that description go? A. He was to have the store lot and he was to have around the foot of the hill at the back of the bottom, and up the hollow at the back of the store house, and all the barn on the left; I just donated him the bam, and donated land to build on; would not charge for .that; he was to leave the buildings and' leave the place in as good shape as he found it when he left. Q. Was that in the originar contract? A. It ought to have been. Q. Was it? A. That was the agreement; I showed him where he could build. Q. Didn’t you tell the jury while ago that was only in the new contract you made to Mr. Ballard? A. I don’t think I did. Q. Are you certain you didn’t? A. I told him there was. a new contract and how it was. Q, Did you tell the jury in the first contract defendants agreed to leave the land just like they got it? A. That was the understanding both times, to leave it as they found it. Q. Both contracts? A. Yes, sir.”
The foregoing is what the appellant states was embraced in the contract under which he let the store house and lands to the appellees.
From other evidence given by him- and his witnesses it develops that the first contract, which was in writing, was made about the first of April, and was to continue one year, and among other terms of that contract was that all buildings which the appellees erected upon the lands, at the end of their one-year lease, were to be left on the land by- them, and become the property of the appellant, J. D. Bentley. The parol contract upon which he sues, was made, as he testifies, about the time that the previous contract expired.
It also appears that shortly after appellees took possession under their first contract they built a good many houses upon the land, and among others, between the old store house which they received under the contract and the hill behind it, and from twelve to fifteen feet from it, they erected a building to be used as a ; cook room and dining room, and two other small rooms adjoining them to be used as sleeping rooms.
According to the testimony for the appellant, the cook room was covered with tar paper and the sides of the walls upon the inside were covered with paper. In this room were two stoves, the pipe of one of which pro-
Shortly after making the first contract in April appellant proceeded to build him another store' house about ten feet away from the one he had rented to the appellees, and he testifies that he had built the new store house and put in a stock of goods before the appellees began to use the cook room complained of.
Some time in the month of May, after the written contract for the rent of the place had expired, which did so about the first of April, the cook room caught on fire and was consumed. The fire communicated itself to appellant’s new store house, because it was only a few feet away, and from it to appellant’s old store house, and both of them were consumed.
The question to be determined is what liability was put upon the appellees by the terms of the parol contract, under which they were holding at the time of the destruction of the buildings by fire, and upon which the appellant bases his suit. Clearly, appellant could not rely upon any provisions uf the written contract as creating any liability upon the appellees for the loss, of the property by fire, because that contract had expired some time before, and no damage had been incurred by the appellant during the time that contract was in force, either from the occupancy of the premises or by reason -of the faulty or negligent manner of the construction of the cook room, nor from any negligent use of it during that time, because during the continuance of that contract there was no loss to the appellant of any kind.
It seems, from the evidence of the appellant, that the appellees had used the cook room complained of for a cook room, and with the stove pipes situated in it as complained of, and with any defects that might have been
In 24 Cye., 1089, the following rule is laid down as applying to such contracts as appellant testifies he had with the appellees: “However, where there is no expressed covenant in the lease requiring the lessee to repair the premises or keep them in repair, an expressed stipulation binding the lessee to surrender the premises, at the expiration of the term, in as good order and condition as the same now are, reasonable use and wear and tear excepted, is construed to be merely the expression of an obligation which the law would imply
According to the terms of the contract between the appellant and the appellees., there is no expressed covenant to repair the premises or keep them in repair, and the obligation which appellant says the appellees took upon themselves was to surrender the premises, at the end of their term, in as good order and condition as the same now are, and, in the language of the appellant, “he would leave me as I was.”
Section 2297 of the Kentucky Statutes provides: “That unless the contrary be expressly provided for in the writing, no agreement of the lessee that he will repair or leave the premises in repair shall have the effect of binding him to erect similar buildings, if, without his fault or neglect, the same may be destroyed by fire or other casualty, etc.”
Under the facts of this case no fault or neglect cculd be imputed to the appellees for the use in a proper manner of the cook room, when it was in the same condition as it was when appellant let it to them. In order to make them liable for the damages suffered' by the appellants it would have to appear that the appellees were guilty of some neglect, which resulted in the fire, and there seems to be a total absence of proof to that effect, the evidence showing simply that the servant of appellees was cooking in the room, and, having stepped our for a few moments in attending to her duties in preparing' vegetables to be cooked, when the building was discovered to be on fire.
While the evidence for the defendants tends strongly to show that the pipes were arranged under the direction of the appellant, and in the manner in which he directed them to be fixed, but we have arrived at the conclusion, without considering anything except the evi
While the instructions, given by the court were erroneous, but, inasmuch as the appellees were entitled' to have the jury to find a verdict for them, the instructions-were more favorable to appellants than they were entitled to, and hence could have been in no -wise prejudicial to them.
The errors in the exclusion of evidence complained of by appellants, do not relate to anything except the measure of damages for the losses sustained, and the appellees, not being liable for the losses, were not prejudicial to appellants.
It is., therefore, ordered that the judgments appealed from be affirmed.