33 W. Va. 32 | W. Va. | 1889
On the 8th day of May, 1886, Simon Kline and Kalph Kline, partners under the firm name and style of Kline Bros., brought an action of trespass on the case in assumpsit against H. B. and K. B. McLain, laying their damages at $10,000.00, in the Circuit Court of Ohio county, and filed their declaration at rules held on the first Monday in July, 1886, to which declaration the defendants demurred, and on consideration the court below sustained the said demurrer as to the first two or special counts, and o\ erruled the same as to the other or common counts, and thereupon the plaintiffs obtained leave to amend, and on the 14th day of January, 1887, the plaintiffs tendered for filing an amended declaration, to which the defendants objected on the ground that the same and each
As there was no bill of exceptions taken in the case, the facts can only be ascertained, so far as they appear in the pleadings. From the first count in the last amended declaration filed by plaintiffs it appears, that defendants were the owners of a three-story brick building situated in the city of Wheeling, the locality of which is therein described, and that by an agreement in writing dated October 22, 1882, said defendants leased to plaintiffs the first story of said building for the period of one year next ensuing from the 1st of April, 1888, to be used as a store-room, which lease by its terms provided,-that the rental should be $800.00 per annum, payable quarterly from the 1st day of April, 3883, and that the plaintiffs should keep the building in repair except as to “unavoidable accidents and natural wear and tear,” which said exception of “unavoidable accidents” was construed and understood by and between both plaintiffs and defendants at the time of the execution of the lease and ever . afterwards as imposing upon the defendants the obligation, in consideration of which they (defendants) promised and undertook to keep said building in repair as to and against unavoidable accidents, and the plaintiffs averred, that such construction was the true intent and meaning of said clause, as understood and meant 'by both plaintiffs and defendants in the making and executing of the said contract and lease.
The plaintiffs in the second count aver, that said lease by
The plaintiffs further aver, that during the time of their occupancy under the lease aforesaid of said room they not only paid their rent but kept the said room in repair, as they had contracted to do except as to “unavoidable accidents and natural wear and tear,” and that the said store-room became by reason of an unavoidable accident uninhabit-table and unfit for the purposes, for which it was rented, and that the defendants, although frequently notified of the fact and requested to make said store-room habitable and fit for the purpose, for which it was rented by making the repairs, which were made necessary by the unavoidable accident aforesaid, did at the time aforesaid fail, neglect and refuse to, as by the terms of said lease and the mutual construction thereof they (defendants) promised and undertook to do, repair the injury occasioned by the said unavoidable accident; that the unavoidable accident, which occurred to the said store-room, and which rendered the same uninhabitable and unfit for use of any kind, and which, though often requested, the defendants refused to repair, consisted of the swaying, falling out and bulging out of the two parallel side walls of the brick store-room, which was caused by the great weight of the walls and building of the second and third stories immediately upon and above the said storeroom, which was so great as to make it dangerous, and as to make it necessary to tear down the western wall of said room, and the wall of the rooms above, to the foundation;
The plaintiffs in their declaration made other averments as to the character and extent of the damages sustained by them by reason of said unavoidable accident and the failure and refusal of the defendants to repair the same, although often requested so do to, and that by reason of the premises the defendants were guilty of a breach of their contract of leasing, and the plaintiffs were compelled to abandon and did abandon their wholesale and jobbing trade to the damage of the plaintiffs $10,000.00, which the defendants undertook and promised to pay etc., but which they have failed to do although often requested ete., to the damage of the plaintiffs $10,000 00.
The only question presented for consideration is, whether the court erred in sustaining the demurrer to the plaintiffs’ declaration. It appears, that there was a contract in writing
In the case of Crawford v. Jarrett, 2 Leigh. 630, the court announces the rule as follows: “Parol evidence can not be admitted (unless in case of fraud or mistake) to vary, contradict, add to, or explain the terms of a written agreement by proving that the agreement of the parties was different from what it appears by the writing to have been.”
In the case of Watson v. Hurt, 6 Gratt. 633, we find the rule as follows: “It is perfectly well settled that the terms of a written contract can not be varied by parol evidence of what occurred between the parties previously thereto or contemporaneously therewith.”
The plaintiffs in this action are seeking to recover upon an alleged special contract in writing and also a verbal understanding between the parties at the time said contract was made as to the liability of the lessor to the lessees, in the
In the case of Railroad Co. v. Rathbone, 1 W. Va. 87, this Court held: “Where a party declares in assumpsit and seeks a recovery upon a special contract, he is bound by the terms thereof.” Washburn in his work on Keal Property (4th Ed. vol. I, p. 537,'§ 7,) propounds the law as follows: “Without an express covenant to that effect on the part of the lessor he can not be held liable for repairs made by the tenant upon the demised premises, nor would he he bound by a parol promise to make repairs, if such promise is founded only upon the relations of landlord and tenant. See Gill v. Middleton, 105 Mass. 478. Kor is he hound to repair them himself, unless expressly made so by covenant, nor to remove any nuisance, unless caused by his own act, or he has covenanted to that effect.” See Moore v. Weber, 71 Pa. St. 429; Libbey v. Tolford, 48 Me. 316; Arden v. Pullen, 10 Mees. & W. 321; Vai v. Weld, 17 Mo. 232.
Where the owner of a building of three stories let a room in the middle story, and covenanted that if. the premises should be damaged by fire so as to make them untenantable for more than thirty days, the rent at the election of the tenant should cease. The upper story was in the occupation of another tenant, and while in that condition, the roof accidentally took fire, and rendered the premises untenantable. The landlord began to repair the roof, but before it had been finished the rain injured the tenant’s goods, and he claimed damages of the lessor, but the court held that, though he might have removed from the premises and ceased to pay rent until they had been repaired, he had no remedy against the landlord for the injury done his goods while he kept them in the building.” Doupe v. Genin, 45 N. Y. 119.
This Court, in determining the questions raised in the case of Robrecht v. Marling, 29 W. Va. 765 (2 S. E. Rep. 827) held: “In an action for damages for failure of the landlord to give possession of property which has been leased, or from which he has ejected the tenant, where the gist of the action is being deprived of the benefit of the lease, whether the action is covenant or tort, the general rule is that the plaintiff is entitled as the measure of his damages to the difference between the rent reserved and the value of the premises for the term. He may also recover such special damages as have directly and necessarily been occasioned by defendant’s wrongful act or default, but can not recover what he might have made on the premises during his lease, nor for loss sustained by selling his stock, agricultural implements, etc., for less than their value.”
The gravamen of the plaintiffs’ claim in the case under consideration is the failure of the defendants to keep said building in such repair as to enable them to use and occupy it as a store-room, and the damage occasioned by their removal from the same into a smaller building in a more unfavorable locality, the sale of a portion of their stock at a sacrifice, aud the loss occasioned thereby, combined with the loss of trade caused by the change of locality; but under the rulings in the case of Robrecht v. Marling, supra, the plaintiffs can not recover what they might have made on the premises during the lease, nor the loss sustained in selling their stock;” neither in my opinion can they recover any damages resulting from their
Greenleaf on Evidence (5th Ed. p. 88, § 103) says : “The law however presumes a promise, only where it does not appear, that there is any special agreement between the parties; for if there is a special contract, which is still open and unrescinded, embracing the same subject-matter with the common counts, the plaintiff, though he should fail to prove his case under the special count, will not be permitted to recover upon the common counts.”
Then, as there was no express contract on the part of the plaintiff' to repair said building, when the injury might be caused by unavoidable accident, and the law wall imply no such contract, where there is an agreement in writing, I do not think, that the plaintiffs by either their original or amended declaration have presented such a case, as entitles them to recover.
Eor these reasons we are of opinion, that the court below committed no error in sustaining the defendant’s demurrer, and the judgment of said court must be affirmed with costs to the defendants in error.
AEEIRMED.