133 P. 54 | Okla. | 1913
October 9, 1909, one L. A. Lewis, the owner of a certain three-story building situated at 314 West First street, Oklahoma City, leased the second and third floors thereof to the defendant in error for a term of two *555
years, beginning January 1, 1910, for the consideration of $2,400, to be paid in monthly installments of $100 each. On December 10, 1909, by written assignment the said defendant in error transferred his entire interest in and to said lease to the plaintiff in error. By the terms of the assignment the assignee covenanted and undertook the payment of the monthly rent to the owner of the premises during the full term of the lease. The owner's agents gave their written consent to the transfer, conditioned only that the assignee should in every respect comply with the terms of the original lease. Plaintiff in error was therefore the assignee of the lease and not a subtenant of the lessee. Tyler Commercial College v. Stapleton,
After the first two months of occupancy of the premises, the transferee refused to pay further rent, claiming an eviction, or at least a constructive eviction, caused by the acts of the owner of the adjoining property closing the windows in the east wall of the demised premises. At the time the lease and assignment thereof were executed, the adjoining lot on the east, which belonged to a different owner, was vacant. The east wall of the leased premises was a party wall, belonging to the owners of the adjoining properties. Some time in February, 1910, the owner of the adjoining lot commenced the erection of a three-story building thereon, and in the course of its erection the *556 window openings, formerly in said east wall, were filled in with brick and mortar, thereby making a solid wall between the two buildings. Did the mere building upon the adjoining lot, by which the demised premises were rendered less valuable to the use of the assignee of the lease, affect the right of the assignor to his rent, and was it sufficient to authorize the tenant to refuse the payment of further rent on the ground that it constituted a breach of an implied covenant of quiet enjoyment? The lease contained no express covenant for quiet enjoyment of the premises. This, however, was unnecessary, as according to the weight of authority, uninfluenced by statute, such a covenant will be implied. Tiffany on Landlord and Tenant, sec. 79; McAdam on Landlord and Tenant (4th Ed.) sec. 125; Washburn on Real Property, sec. 668, 668a. But whom does the implied covenant bind? The lessor or those in privity of estate with him, or does it extend to the owners of adjoining property? Obviously but the former. The owner of the adjoining vacant lot is not a party to the lease contract, hence is not bound by its terms.
In Brown v. International Land Co.,
The wall, it will be remembered, was a party wall. A party wall must ordinarily be construed to mean a solid wall.Normille v. Gill,
Originally an eviction was understood to be a dispossession of the tenant by some act of his landlord or the failure of his title. Of later years it has come to include any wrongful act of the landlord which may result in an interference with the tenant's possession in whole or in part. The act may be one of omission as well as one of commission. The rent is suspended by an eviction because it is plainly unjust that the landlord should be permitted to collect it, while by his own act he deprives the tenant of the possession which is the consideration for it. But the landlord is not responsible for the action of others *558
lawfully done on their own premises. He is liable only for his own acts and for such acts of others as it was his duty to protect his tenant from. Oakford v. Nixon, 177 P. 76, 35 A. 588, 34 L. R. A. 575. A similar question was before the Supreme Court of Ohio in Hilliard v. New York Cleveland Gas Coal Co.,
"If the lessors had conveyed to the lessee a right to the unobstructed enjoyment of light and air over the vacant lot, for and during its term, they would have been answerable for that right in case of disturbance. But there was no such grant. And the vacant lot not belonging to the lessors at the time of leasing, it cannot be urged with any force of reason that an easement by implication in the passage of light and air followed a demise of premises to the lessee."
In Johnson v. Oppenheim,
In Barns v. Wilson,
"The act of the adjoining owner was a lawful act, performed in a lawful and proper manner, and the lessor took no part in the performance of it, indeed, was wholly powerless to prevent it. The loss of the rent must fall either on the lessor or the lessee, and as the latter is under a voluntary, express, and absolute promise to pay the rent, he ought to perform his agreement, when the lessor is in no default whatever."
It was said that the lessee might have protected himself by a special contract, but not having done so could not complain. See, also, Parker v. Foote, 19 Wend. (N.Y.) 309; Myers v.Gemmel, 10 Barb. (N.Y.) 537; Palmer v. Wetmore, 4 N.Y. Super. Ct. 316; White v. Mealow, 37 N.Y. Super. Ct. 72; Brown v.Curran, 53 How. Prac. (N.Y.) 303; Conner v. Bernheimer, 6 Daly (N.Y.) 295; Ramsay v. Wilkie [Com. Pl.] 13 N.Y. Supp. 554;Manville v. Gay et al.,
It is finally contended that section 1166, Comp. Laws 1909, is conclusive of defendant's rights. Assuming the statute, fairly construed, to be applicable, we fail to see wherein it relieves the defendant of liability. It only provides for the termination of a contract of hire before the end of the term agreed upon, when the latter, within a reasonable time after request, fails to fulfill his obligations as to placing and securing the hirer in the *560 quiet possession of the thing hired or putting it in a good condition or repair. This was done by the owner, apparently to the satisfaction of the defendant, at least as nearly so as the changed condition would permit of. Concessions were made the assignee by the owner. The former continued the occupancy of the premises at a reduced rental and has not been relieved of his obligation to pay plaintiff the original consideration on account of the purchase of the lease.
The judgment of the trial court should be affirmed.
By the Court: It is so ordered.