23 Mich. 164 | Mich. | 1871
Babcock sued Clark as his lessee, for rent. The defense set up by way of recoupment, was under a claim for damages, partly for delay in getting the property in condition for profitable use, and partly for expenses in repairs.
The lease, dated February 16, 1869, but covering a term of one year from February 1, 1869, demised a “steam saw-mill and salt-works ” and the lands thereunto belonging and appertaining, described in full, with a reservation of certain houses and premises not used for -business. Upon notice to be given on or before October 1, 1869 (which was actually given), the lease was to be. extended two years more, but subject to be defeated by the lessor on notice and payment of certain sums named. The lease was renewed without countermand. The rent was ten thousand dollars a year, one thousand dollars to be paid to the lessor for repairs to be made by him, one thousand dollars for insurance, and the balance as specifically provided. The clause which has led to this controversy is as follows:
“It is also mutually agreed that said party of the first part shall, at his own expense, put the salt-works on said premises in complete running order on the 15th day of
Provision was further made, that if the lessee should employ one Bunnell as engineer, all damages from breakages and explosions, and all damages caused by Bunnell’s; carelessness should be at the -lessor’s risk, and the lessee should have the privilege of repairing the damages and deducting the expense from the rent, and should have a-pro rata deduction from the rent for any time the mill should thereby be kept idle; and for the purpose of this prorata deduction, it was declared that “ the year shall be called the sawing season, viz: six months, commencing on the 15th day of May and ending on the 15th day of November, and shall be the pro rata of said sum of ten thousand dollars.”
The lease further provided that a total destruction of' the mill by fire, should terminate the lease, and that in-case of a partial destruction of the mill, the lessee might-repair at the lessor’s expense, deducting the cost from the rent, and during the repairs, the entire rent should cease running on the same pro rata, as in the case before provided. Possession was to be given and taken at once. The lessor failed to complete the salt-work repairs by the 15th of March, or the mill -by the 15th of April, and the lessee, after each of those days respectively, assumed and completed the repairs. The salt-works were put in complete running order by the 10th of April, but the supply of brine being unsatisfactory, further work was done from time to time on
The court below excluded all evidence of damages dependent on the preliminary delay in getting the property in running condition, and confined them (beyond the expenditures for repairs) to such as might arise out of the deficiency in the well to be noticed hereafter. The ground of this exclusion was that the lease did not contemplate any redress for such preliminary failure, beyond the right of the lessee to step in after March 15 th and April 15th, respectively, and complete the work at the lessor’s expense, to be applied as rent.
TJpon a careful review of the lease, we think this holding was proper. It appears distinctly from subsequent clauses that the parties had their attention called to, and made positive and full provision for, delays arising out of matters which the lessor agreed to be responsible for, by deductions from the rent for repairs to be made at his expense, the lessee being allowed to expend the money. And in those cases interruptions in the use of the property were to be allowed for by corresponding, stoppages of rent, the six months’ busy period being considered as the only period for which rent was to be computed. This being so, and delays in the outset being also expressly provided for, and the repairs being also provided for in such case to be made by the lessee and paid out of the rent, the absence of any further remedy to compensate for the delay is very significant, and requires the remainder of the lease to be scrutinized to see whether it can be regarded as an unimportant omission, having no legal bearing on the case.
The omission to provide any measure of damages, if it was really intended that a claim should exist, is singular, because the delay had been provided for in the other cases, by a sum certain, and not left to unliquidated damages,
- The • subsequent facts could not have any bearing on this question, unless possibly the extent of repairs needed might have been concealed. But the case shows that all the work needed to do what was contemplated was actually done by the lessee in a shorter time than was allowed to the lessor, and was completed before the season for work began. There is nothing in the case, then, to indicate any hardship or variance from the natural inference derivable from the papers themselves. ■ ■
It is also to be remembered that the lessor, under such a • lease, would have been .under no obligation to repair,, with
It is true the salt-works are not mentioned in the subsequent provisions for faulty delays. But this is explained by the fact that the lessee was expressly required to make all but the original repairs at his own expense, except in the specified cases of loss in the mill by fire, and by misconduct of Bunnell, and breakages in the mill. There was no anticipated case that could arise of injury to the salt-works, where the lessor would be responsible for accidents. It is also noteworthy that the lease was to terminate entirely as to the salt-works, though uninjured, whenever the mill was destroyed, and rent to cease for the entire premises, salt-works and all, when the lessee was repairing the mill in the excepted cases. The mill was evidently the principal, and the salt-works an incident, however valuable they may have been. There was no error in the refusal to allow damages for the first delay.
The other grounds of error relate to the condition of the' salt-well, and the losses supposed to have accrued by reason of its defects. The claim is two-fold, — -first, that the lessor was bound to furnish a well capable of supplying sufficient water in quality and quantity for the profitable use of the works; and, second, that he is liable for having actually rendered the well less productive than it would have been without his work.
We think there is nothing in the first suggestion. The
The well was originally sunk by the lessee during some former occupancy. It had never been used, but had once been pumped about twelve hours, with satisfactory results. The lessor, in repairing it, provided for rimming it out and tubing it down deeper than the first tubing had gone. This, work was assumed by the lessee and continued for nearly a month after <the lessor’s time had run out, and it does not appear distinctly who was responsible for the deep tubing, but seems to be assumed, and we shall here take it for granted, correctly, that the lessor having made the plan contemplated it. There were three successions of salt rock. The upper one seems to have been unavailable, as Containing gypsum. The second and third were free from it. The tubing, as continued down, passed the second rock, and the supply was mainly or entirely drawn from- the third. The testimony shows, without contradiction, that when the tubing was put down to the third rock, everything was in good order, and the well yielded all it would yield from that point; but that yield was claimed to be less than it would have been if the lessor had not rimmed out the well as he did; and this is the injury complained of. The evidence showed, without contradiction, that there was no lack of skill or care in the lessor or his employes. The evidence tended to prove, and there was none to the contrary, that the gypsum could only be excluded by tubing below the first salt rock, and that the lessee, after taking posses
Taking these matters together, it appears from the judge’s statement, that there was no testimony whatever from which the lessor could be found to have in any way been responsible for any supposed damage to the well. But counsel claimed there were some facts in the case which might be made to bear that tendency, provided this court would take, as he claimed they should take, judicial notice of the means used in the construction of salt wells to make the tubing serve its proper purposes, and to shut out the detrimental matters that would otherwise injure the work. We cannot, however, assert any such knowledge, even if we possessed it. The whole inquiry is eminently one of fact, requiring a peculiar and scientific or practical knowledge, the result chiefly of local experience. No court can safely venture to propound theories in such cases, and the views of experienced men, who are examined before the jury as to facts as well as deductions from them, are necessary to arrive at the truth. When their testimony is uniform — and the
But we do not conceive that even in this point of view the charge especially complained of could have misled the jury. A juror having asked whether the defendant had “the privilege of improving the salt-works, allowing that the plaintiff had failed to put them in order, — Would the plaintiff be liable?” the court replied: “If the jury are satisfied that when the defendant took possession, the well was simply not put in good running order, Mr. Clark had the privilege, and it was his duty, to. put the well in repair. That is his remedy furnished by the lease, to put it in repair; but if plaintiff had, by what he had done to it, rendered it incapable of being put in good running order, then it was not necessary that Mr. Clark should expend his money upon it.” This was equivalent to saying that if the well was capable of being put in order, the lessee was at liberty to repair it, and should do so under the lease and deduct the repairs from the rent, while he was not bound to throw away money on a well that had been made useless. A previous part of the charge had stated very explicitly the liability of the lessor to respond for any such injitry, as a distinct grievance and a violation of the conditions of his lease. The juror’s question seems to have been suggested by a portion of the charge, which had declared such an' injury would have been a failure to put in order, and the answer explained very well the different circumstances under which the lessee would or would not be com
We think the judgment should be affirmed with costs.