131 Ga. 840 | Ga. | 1909
In the English ease of Newby v. Sharpe, L. E. 8 Ch. Div. 39, a landlord let the basement of a store to a tenant “with full and undisputed right and liberty to store cartridges therein,” covenanted to keep the premises in proper repair and condition, so as to be available for storing cartridges, and also covenanted for quiet enjoyment. Other parts, of the store were at that time let to other persons for storing gunpowder. Soon afterward what was known as the explosives act of 1875 was passed, making it illegal to store cartridges and gunpowder in the same building. The landlord, upon the ‘act coming into operation, removed the tenant’s cartridges out of the- building. A correspondence ensued, and the landlord stated to the tenant that the basement was at the disposal of the latter, but that if he stored cartridges there the landlord must* to protect himself from liability, give notice-to the authorities. The'tenant thereupon commenced his action to restrain the landlord from obstructing the storing of his cartridges, and to compel him to do everything necessary to enable the plaintiff to store them there, and for damages. Fry, J., held that the tenant was entitled to damages for the loss of the use of the demised premises, on the ground that the landlord’s acts amounted to an eviction. On appeal it was held that judgment must be entered for the defendant, for that, (1) there had been no eviction, the removal of the plaintiff’s cartridges being only a trespass; and (2) there had been no breach of covenant by the defendant, for that the covenant to keep the premises in proper condition for storing cartridges only referred to their physical condition; and that the grant of liberty to store cartridges there did not import a warranty of the legality of so storing them, nor did anything in the lease bind the landlord to procure licenses to make the storage legal- In Nicholls v. Byrne, 11 La. (O. S.) 170, (N. S. 110), the plaintiffs alleged, that they leased a lot of ground in the city of New Orleans, fronting on the Mississippi river, for the purpose of breaking up flat
The exact question here involved has not been determined in this State; but the analogies of the law point in the direction indicated above. Thus the Civil Code, §3135, declares that “The destruction of a tenement by fire, or the loss of possession by any casualty, not caused by the landlord, or from defect of his title, shall not abate the rent contracted to be paid." In Fleming & Bowles v. King, 100 Ga. 449 (28 S. E. 239), it was held that the tenant of a rented house is liable for the stipulated rent to the end of his term, although the house, before the expiration of such term, may be destroyed by fire, unless the landlord does acts which in law amount to an eviction of the tenant; and that “erecting an inclosure-around the rented premises and pulling down the walls of the burned building, these things being done by the landlord under
It is urged that the facts in cases of the character cited above differ from those in the present case. This is true to some extent, but not so' as to prevent the applicability of the principle involved in them to the case in hand. The mere fact that, when the tenant rented the property, it was thought that he could continue to sell liquor there would not entitle him to a proportionate abatement of the- rent because the legislature subsequently prohibited the Sale of liquor in the State. If it would do so, why should not licensed druggists insist that they have been prevented from doing the business of filling prescriptions for liquors, or for alcohol except under close restrictions? No doubt this was known to them and their landlords to be a profitable part of their business, which has been cut off by the act of the legislature; but it would hardly be con
It was urged that the lease now involved specifically named the bar, and that its operation was a material consideration entering into the lease of the hotel. In the illustrations just given it could no doubt be frequently proved that both landlord and tenant knew that the latter was selling wines, alcohol, or liquors, and that this was a material part of the business. The mere use of the word “bar” in the lease did not amount to a covenant or warranty on the part of the landlord that the law would continue to allow the tenant to conduct the business of keeping a bar and selling liquors, or a covenant by the tenant that he would do so. The property rented was known as “The Albion Hotel.” In describing it the following language was used: “The leased premises consist of the corridor, office, bar, barber-shop, cigar-stand, billiard-room, on the first floor; boiler-house and kitchen fronting on Ellis street; the second, third, fourth, and fifth stories of the hotel proper; the open court on the second floor; the open courts fronting on Ellis street, to which the tenants occupying stores fronting on Broad street are entitled to use in common with the tenant herein named.” From the last clause quoted, as well as from a statement appearing in the correspondence between the parties in regard to the controversy, it would seem that the entire building was not rented to the lessee, but that there were some tenants of stores on the first floor not included in the hotel proper. The language quoted was merely descriptive of what was rented, not a covenant on the part of the tenant to conduct the business of keeping a barroom, or a warranty on the part of the landlord that the law would permit him to continue to do so. Nor did other portions of the lease have that effect. It would be no more proper to hold that the employment of the words “bar” and “barroom ” amounted to a covenant to use the place thus designated for the sale of wines, beer, or liquors, and for no other purpose, than it would be to declare that the words “billiard-room,” “barber-shop,” and “kitchen” im
It was argued that as to the bar the tenancy was terminated; and cases were cited to the effect that where an ■ apartment in a building is rented, and the building is destroyed, the tenancy ceases. Gavan v. Norcross, 117 Ga. §56, 360 (43 S. E. 771). Also, to sustain the contention that if there is a substantial destruction of the subject-matter of the lease, by the act of God or the public enemy, rent ceases (9 Cyc. 631)’; that eviction by the landlord results in suspension of rent; eviction by another from a portion of the premises, under paramount title, entitles the lessee to an apportionment of rent (24 Cyc. 1186-7) -; that, according to some authorities, if part of the premises are taken by condemnation, under the power of eminent domain, the rent may be apportioned; and that to the general rule that a party to a contract is not discharged by subsequent impossibility of performance there is an exception where the performance becomes impossible by law (9 Cyc. 629-631; Civil Code, §3725). These propositions, as abstract rules, do not require discussion. They do not aid the plaintiff in error, because they do not apply to the facts of this case.' Neither the leased premises nor any part of them have been destroyed ; no act of Providence or of the public enemy has affected the status. The only act complained of is that of the Georgia legislature. There has been no eviction of the tenant from the premises by the landlord or by one holding paramount title, and no condemnation of any part of them. Nor has the law prevented the carrying out of the written contract between these parties. An underlying error in the contention of the. plaintiff in error arises from dealing with the contract of lease as different from what it really was. The landlord leased to the tenant a certain hotel, including a barroom, cigar-stand, etc. The tenant contracted to pay certain rent; that the premises should be used for hotel purposes alone; and that it should be a first-class hotel; with other agreements not material now to recite. The argument for the plaintiff in error treats the
It might be remarked that prior to the passage of the prohibition act there existed in Georgia a local option law, and all persons were bound to know that there was a possibility that the sale of liquors might be prohibited in any county, under an election held fox the determination of that question. Also the sale of liquors has for a great many years been the subject of legislation, regulating, restricting, or prohibiting the business'in different localities; and this must have been known to all men. But the argument of notice from special facts is unnecessary. The sovereign State in its police power may pass laws restricting or prohibiting .the sale of liquors. Landlords and tenants who make contracts of leases of premises are bound to know that the State has such a power; and in the absence of any provision in a lease for an abatement of the rent in case of the exercise of it, or similar provision, the landlord will not be held to warrant against the possible action of the State in that regard, and the tenant who leases the premises will not be entitled to an abatement of rent because the State prohibits the sale of liquors.
Long before the passage of the prohibition law a person desiring
It was argued by counsel for the defendant in error, that the
Judgment affirmed.