Frepons v. Grostein, 87 P. 1004

Frepons v. Grostein

87 P. 1004 | Idaho | 1906

SULLIVAN, J.

This action was brought to recover damages alleged to have been sustained by the plaintiff, who is the respondent here, to a leasehold premises known as the “Gate Way Hotel,” situated in the city of Lewiston, Nez Perce county, and the hotel furniture situated therein. It appears from the record that the appellant owned the Gate Way Hotel and the premises on which it was situated and the adjoining lot; that he leased said hotel to one Baughman, and thereafter said Baughman assigned said lease to the plaintiff; that said plaintiff entered into the possession of said premises under said lease about the twelfth day of November, 1904, and remained in possession thereof until the twentieth day of May, 1905, and paid rent therefor until the last-named date. About the first day of April, 1905, the appellant commenced the *675erection of a building upon the lot adjoining said hotel property; it is alleged that the appellant in erecting said building tore down the walls and roof of portions of said hotel, and built other walls in the place of those taken down; that by this tearing down and rebuilding the hotel was rendered useless for a hotel property, and that respondent’s furniture was damaged in the sum of $100, and that he was obliged to move out of the hotel; that respondent was further damaged to the extent of $1,100 because of the erection of said building, and prayed for judgment for $1,200. Appellant demurred to the complaint: First, that two purported causes of action had been improperly joined — (a), the cause of action for injury to property and disturbing the quiet enjoyment under the lease, and (b), a tort by creation of a nuisance. Second, that the complaint did not state facts sufficient to constitute a cause of action, which demurrer was overruled by the court. Thereupon appellant' answered and set up three defenses. The first was a denial that the respondent was damaged by reason of the erection of said building; the second that the respondent had arbitrated the matters involved in this suit, and that the arbitrators had awarded him $75 as damages, which had been paid by the appellant and received by the respondent. In the third defense the appellant, by way of cross-complaint, alleged that he had rented the premises to respondent, that the rent for the same was $75 per month, that the respondent owed him for two months rent, and he asked for judgment for $150. The cause was tried to a jury and a verdict wus rendered in favor of the respondent for $200. A motion for a new trial was overruled and judgment entered in favor of the respondent for $200 and costs of suit. This appeal is from the judgment and order denying a new trial.

A number of errors are assigned. The first we will consider is that the court erred in overruling the demurrer to the complaint.. It is contended that two causes of action are improperly joined. There is nothing in this contention, for the reason that the damages sued for arose out of the same contract *676and were for injuries to property. (Rev. Stats., sec. 4169.) It is also, specified that excessive damages were given by the jury under the influence of passion and prejudice. We have examined the evidence with considerable care, and are satisfied that passion or prejudice did not influence the jury in arriving at its verdict. And it is specified that it was error to submit the question of damages to the jury because of obstructing the light and air to said leased premises. There was some evidence introduced on that question. The court, however, instructed the jury that respondent could not recover for any such alleged damages, and the presumption is that the jury obeyed the instructions. The third specification is the insufficiency of the evidence to justify the verdict or decision. While the evidence is not as clear as it might be as to the actual damage done, yet we think it sufficient to sustain the verdict for $200.

It is contended that the arbitration pleaded in the answer was binding upon the parties, and that the arbitrators took into consideration past damages and future damages for what was to occur until the completion of the new building. One of the arbitrators testified that they were to take into consideration the condition of the furniture, “driving the roomers away, and the future condition, consideration of tearing out the rear walls. Yes, sir, and darkness of the rooms. Mr. Frepons presented all of this matter to me.” That witness further testified: “I didn’t take into consideration only that Mr. Frepons mentioned to me as it was a hard matter to see what would occur. ’ ’ The respondent himself testified that he-did not state to the arbitrators that their arbitration should include anything that might occur after the date that they were to pass upon the arbitration. There seems to be a conflict in the evidence on this point. The testimony of the witness Arnold is not "very positive, and the arbitrator Dill testified that the condition of the furniture was one matter presented for the arbitrators’ consideration, and that “if I remember right, the removal of the wall and the damage that they sustained to that time by the inconvenience that had been *677caused, and I think the light.” We are unable to determine from the agreement for arbitration what was taken into consideration by the arbitrators. It simply states that a controversy is now existing and pending between the appellant and respondent in relation “to certain damages to a lease held on the Gate Way Hotel,” and the article itself does not state whether future damages are to be taken into consideration or not. And we cannot, from the verdict, ascertain from what items of damage the verdict was made up.

We think from all the testimony that the jury might reasonably infer that no future damages were included in the arbitration. The court charged the jury upon the matter of arbitration to the effect that if they found that the respondent had submitted to arbitration not only the damages which had accrued but the damages which might accrue in the future] it would be a complete settlement of this matter, and also instructed them to determine from the facts as shown by the evidence what matters were submitted for arbitration. To put it most strongly in favor of the appellant, if the testimony of the two arbitrators was to the effect that they took into consideration future damages, taking all the evidence together, there is a substantial conflict upon that point, and under the well-established rule of this court a reversal will not be granted where there is a substantial conflict in the evidence. It is well established that a landlord cannot, after he has rented rooms in a building for a certain purpose, so tear down and destroy or mutilate the building as to render such rooms unsuitable for the purposes for which they were leased without being liable for damages. (Bancroft v. Goodwin, 41 Wash. 253, 83 Pac. 189, and authorities there cited.)

It is also contended by appellant that the respondent never at any time turned over his lease to the landlord or received the consent of appellant to abandon the premises. Undisputed proof shows that they did abandon the premises on the twentieth day of May, 1905, and we think, under the facts of the case, they had a right to do so. (Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 222.) A landlord cannot make a *678leased premises unfit for the uses for which it was leased and recover rent therefor if the premises be abandoned.

Certain errors are assigned in regard to the admission and rejection of testimony. Some evidence was admitted over the objection of appellant that was afterward shown to be incompetent, and the court charged the jury not to consider such evidence. We have examined all the errors specified and find no substantial error in the record. We find no error that affected the substantial rights of the appellant. The judgment must, therefore, be affirmed, and it is so ordered. Costs are awarded to the respondent.

Stockslager, C. J., and Ailshie, J., concur.