| Mich. | Mar 11, 1892
March 26, 1884, one Willis J. Fitch, then the husband of plaintiff, leased a foundry and machine-shop owned by him, and known as the “Fenton Iron-Works,” to the defendant for one year from the 1st day of April, 1884, with the option of another year. The rental was $2,000 per year. Fitch and the plaintiff were at the time having domestic troubles, which after-wards ended in a divorce, and plaintiff married again. Soon after executing this lease Fitch went away, and before leaving conveyed his interest in the premises to his wife, the plaintiff, by deed. The deed stated that its intention was to convey to plaintiff all the right, title, and interest of Fitch in and to the Fenton IronWorks and foundry, and all his interest in the tools and fixtures therein. This deed was dated March 27, 1884. On April 1, 1884, Fitch gave his wife the following order:
“Fenton, Mich., Apr. 1, 1884.
“ M. Walker:
“Please pay to my wife, Seraphine Fitch, all rents and moneys in your hands due to me, at any time she may ask for them, and oblige.
“ Respectfully,
“W. J. Fitch.”
1. As to the rent, plaintiff claims that defendant occupied the premises both years at the rate of $2,000 per year.' Walker testified that, before the end of the first year, he informed the plaintiff that he could pay but-$1,000, and that it was talked over, understood, and agreed between them that the rent for the year commencing April 1, 1885, was to be that sum. Plaintiff claimed that defendant never intimated anything of the kind to her until he had been in possession of the premises for several days after the close of the first year, and that he then said to her that he could not afford to pay over $1,000 for the second year, but that she never agreed or assented to any reduction in the rent. The defendant admitted on the trial that plaintiff was entitled to a judgment of $493.58. The jury found the amount of defendant’s indebtedness, June 11, 1890, tobe $1,642.05.
It is assigned as error that the court instructed the jury that, to render any agreement between the parties binding, it must have been made during the first year. The difference between the parties as to the amount of rent to be paid the second year was clearly defined by the testimony. According to the defendant’s showing, the contract to reduce the rent to $1,000 was made before the end of the first year, and under plaintiff’s testimony there was never any contract of reduction made. There was no room in the case for any other theories
2. The lease from Fitch to defendant covered also the machinery, fixtures, tools, implements, moulds, and all articles pertaining to the running of the business, and also a dwelling-house connected with the premises. It is also provided—
“For said first party [Fitch] to sell all stock now on hand at net cost to him, the said second party [defendant], and to take a similar stock on same terms at expiration of this lease, if desired.”
The plaintiff, under this provision, claimed to recover for the value of the stock turned over to defendant by Fitch, inventoried when defendant took possession, and found to amount to $871.48. Defendant claimed that he had an agreement with Fitch by which he was to furnish him $500 in money, and pay all his outstanding indebtedness pertaining to the foundry, and that the same was to be deducted from the rent. Defendant did not tender back this stock at the end of the second year, but claimed upon the trial that he had paid under this arrangement $1,226.31 for Fitch. From this amount he deducted the value of the stock, and charged the balance against plaintiff upon the rent.
The court should have instructed the jui’y in this respect as requested, to wit:
“It is claimed on the part of the defendant that, in*532 the original arrangement with Willis Fitch, it was agreed that the defendant should pay the outstanding indebtedness of Fitch, and apply the same on the account of rent. It also appears in proof that a large amount of payments were made to various parties who were creditors of Fitch. The plaintiff claims that under the assignment to the plaintiff in this cause no such payment would be binding upon her, and I direct you that, if it be a fact that these debts were paid to these creditors as a result of an arrangement with Mr. Fitch at the time of the original agreement between Mr. Fitch and Mr. Walker, they were binding on the plaintiff, and are a correct charge against the account of rent of these premises.”
All the plaintiff received by her deed was the right, ’f'itle, and interest of Fitch in this stock, and her order for the rent only demanded what was due to Fitch. It did not matter whether plaintiff knew of this agreement between Fitch and defendant, and the court was in error in instructing the jury that plaintiff's knowledge and consent to this agreement was necessary. She received her deed and her order after this agreement was made, and she took the personal property and the rent subject to it.
There was also a controversy about repairs, the rent of the house which plaintiff occupied, and other matters. In relation to the repairs, there was no error in the charge of the court, as there was no testimony tending to show that any of the repairs made by Walker, and for which he asked credit, were occasioned by the reasonable use and wear of the premises or by damage of .the elements. Under the lease, it was his duty to keep the premises in good repair, and, at the end of his term, to deliver the same in like condition as when received, “reasonable use and wear thereof and damage by the elements excepted.”
We find no other errors in the charge. The assign-
The judgment is reversed and a new trial granted, with costs of this Court to defendant.