223 F. 933 | 6th Cir. | 1915
When tins case was here before (O’Brien v. Illinois Co., 203 Fed. 436, 121 C. C. A. 546) we reviewed the judgment which had sustained a demurrer to the petition. It then appeared that O’Brien had leased a certain lot to Nolan for 97 years, commencing in January, 1907; that Nolan, as lessee, had agreed to pay a specified rental and to erect at once a described building; that the surety company had guaranteed the performance of Nolan’s promise to erect the building; that it had not been erected, and that the agreed rent had not been paid; and that, for nonpayment of the rent, O’Brien had terminated the lease and re-entered. It was decided that O’Brien’s damages against the surety company on its bond were to be measured by the value which the building, if erected, would have been to him as security for the performance of Nolan’s rental and other covenants in the lease. After the case was remanded, an answer was filed and a trial on the merits had. It appeared that the building would have cost more, than $7,000, and that the rents and other payments which had become due from Nolan before forfeiture and re-entry were $5,100, and, accordingly, O'Brien had judgment for $5,000, the full amount of the bond penally. The surcay company brings error, and the record presents four distinct questions.
4. It is next and finally urged that the building ordinances of Cleveland, in force at the date of the lease, forbade erection of the structure which the lease contemplated, and hence that neither Nolan nor his surety can be held to respond for its nonerection. The lease contains an express agreement by Nolan that he will “at all times comply with and fully obey all lawful requirements, rules, laws, and ordinances of all lawfully constituted authorities in erecting said building and in using said premises”; but we do not see that this covenant increased Nolan’s existing legal duty. Evidentially, it shows that the subject of ordinances was in the minds of the parties, and so it tends to strengthen the natural presumption that they did not intend by another paragraph of the lease expressly to provide tor the erection of a building which the ordinances made unlawful. This other paragraph provided that Nolan should “erect on said premises a brick building of fireproof construction, not less than two stories in height, having a frontage on Eighth street of not less than 60 feet, and a depth of not less than SO feet; the front of said building to be of pressed brick, with stone trimmings.” The parcel leased to Nolan had a westerly frontage on Eighth street of 61.16 feet, and a depth, ex
For the purposes of this opinion we assume that those sections of the ordinances, which were offered in evidence and the rejection of which is covered by the assignments of error, were in force at the date of making the O’Brien-Nolan lease, and during the entire period permitted for erecting the buildings. They are said to' contain three limitations inconsistent with the construction of the prescribed building. These are: (1) That a building designed and intended for a hotel and fronting upon an alley must have its front wall 30 feet distant from the opposite side of the alley,' and that since Eighth street was, at this point, only 16 feet wide (and hence an alley), the front wall must be 14 feet back from. Eighth street, whereby the building could be only 36 feet deep, instead of 50 feet, as agreed; (2) that a building cannot occupy more than a prescribed percentage of the building site, which percentage is, in all cases, less than would be occupied by this building; (3) that behind every building a yard is required to be left of greater area than would be possible upon this parcel, if this building were put up.
The next difficulty is as to the character of “Eighth street” or “Oak Place.” The parties, O’Brien and Nolan, called it a street. One section provides that all thoroughfares less than 30 feet in width (and
The next difficulty is as to the character of the O’Brien lot. The ordinance carefully defined four kinds of lots; and this lot is not within any one of the definitions. An “open lot” is one bounded upon all sides by streets; this clearly does not apply. A “corner lot” is one bounded - on two sides by streets; even if “Eighth street’ is not an alley, but constructively a street for 66 feet back from Prospect street, it is a street on the side for only part of the way — and a part not reaching the spot in question — and so the lot does not respond to this definition. A “through lot” abuts upon a street at each end; and this lot does not. An “interior lot” is bounded on one side by a street; and upon the other three sides by lot lines. This definition does not, at -least with certainty, reach the O’Brien lot, bounded upon one side by a street, upon another side by a court, and upon a third side by a street — alley—court way; and since the main purpose of the restrictions now involved must be to secure light and air and easy and safe access for public and private purposes, it cannot be that such a boundary is the equivalent of mere abutting on an adjacent lot.
The restrictions which require that only a certain percentage of the building site shall be occupied do not apply, both because the record does not show how much of the entire lot is or would be built upon, and because such rules, if any, as apply to other than corner lots are evidently modified by other sections not put in evidence. The provisions which require yards behind the buildings apply only, and with specific variations, to. corner lots and to interior lots. It is reasonably sure that this is not a “corner lot”; and, as stated above, we are not inclined to consider it an “interior lot.” If it is, and if the required yard is not already.in existence somewhere on the lot further north (a point not made to appear), we would have a provision requiring a yard at least 10 feet deep along Alpha court, thus narrowing, by 10 feet, the contract frontage on Eighth street; but this section further says:
“Provided, that when a through lot extends to a public or private alley or court way, the yard space for through buildings of the third and fourth grades shall be proportioned as a line court between the buildings and the rear line of the lot. For buildings of other grades, see sections 753 and 757.”
Section 753 is in evidence and is foreign to the subject; section 757 is not in evidence. In this proviso, it seems quite apparent that “through” is a misprint for “interior,” because it is contained in a
Buildings are divided into six grades. It is enough to say — selecting merely illustrative uses — that a hotel is in the second grade, an automobile garage in the sixth, and the requirement for 30 feet between the building front and the opposite side of an alley applies to the second class, and not to the sixth. If, therefore, the building in question was to be a hotel (and if Eighth street was an “alley”) the frontage would have to he withdrawn 14 feet from Eighth street; but if the building was to be (e. g.) an automobile garage, this restriction did not apply and the building could be made full size.
We have gone at length into these ordinance conditions for the purpose only of making clear the situation which we regard as controlling, viz., that, even if the intent to make the building a hotel should be incorporated into the contract, we cannot say that the ordinances made the building contract unlawful. The utmost which can be said is that the right of erection was doubtful and the attempt might provoke a controversy with the authorities. What the outcome might he no one could tell. If such vague and confused provisions are to be enforced at all, a large administrative discretion must exist. Further, such building codes are subject to summary change or suspension by the local Eegislature, and it is matter of common knowledge that such changes or suspensions are often made to avoid cases of
None of the proof offered and rejected was put forward as creating any issue of fact for the jury; and all the argument in this court has been to the effect that the evidence, if accepted and believed, would, as matter of law, establish the invalidity of the contract. We therefore do not consider whether there may lie unnoticed in these proofs some question of fact which might have been brought out as requiring submission.
The judgment is affirmed.