205 P. 256 | Mont. | 1922
delivered the opinion of the court.
In this action defendant prevailed in the district court. The plaintiff has appealed from the judgment and an order denying his motion for a new trial.
The action was brought to recover damages alleged to have been sustained by the plaintiff as the lessee of the defendant of a building situated in the town of Broadview, in Yellowstone county, known as the Golden West Hotel. The term of the lease was to begin on January 1, 1917, and to continue to January 1, 1922. The plaintiff obligated himself therein to pay rent at the rate of $200 per month on the first day of each month, and to discharge from time to time water rents that would be assessed upon the premises during the term of the lease; to make all temporary repairs at his own expense; to keep the premises in a clean and healthy condition; not to sublet them or assign the lease except by the consent of the defendant; and to keep the premises free from lewdness, gambling, tippling, etc. Upon the breach of any of the conditions, the lessor was entitled to forfeit the lease and reassume possession. On his part, the lessor did not assume any obligation other than those imposed upon him by law, except that he agreed to install a heating system sufficient to warm the building, within twelve months after the date upon which the term commenced.
It is alleged, in substance, that the plaintiff entered into the possession of the premises, and kept and performed all the conditions of the lease to be kept and performed on his part, until January 1, 1918, when he quit the premises and delivered them to the defendant, who is now in possession of them; that he abandoned the lease because the defendant failed to perform his obligations thereunder in these particulars: That the defendant failed to install .the heating system; that the water-
The answer admits that defendant leased the premises to plaintiff; that plaintiff entered into possession of them and occupied them until January 1, 1918, when he abandoned them and delivered possession to the defendant; and that defendant did not install the heating plant as he agreed under the terms of the lease. It denies all the other material allegations of the complaint. It further alleges two special defenses, upon which the plaintiff joined issue by reply.
At the commencement of the trial the defendant objected to the introduction of any evidence on the ground that the complaint did not state a cause of action. The objection was overruled. At the close of plaintiff’s evidence the defendant moved for a directed verdict on the grounds that the complaint did not state a cause of action, and that the evidence was insuffi
So far as recovery is sought for damages for a failure of the
Section 7742 provides: “If, within a reasonable time after notice to the lessor of dilapidations which he ought to repair, he neglects to do so, the lessee may repair the same himself, where the costs of such repairs do not require an expenditure greater than one month’s rent of the premises, and deduct the expenses of such repairs from the rent, or the lessee may vacate the premises, in which case he shall be discharged from further payment of rent, or performance of other conditions.” The exception found in section 7734 includes injuries to the rented property occasioned by the ordinary negligence of the tenant. Sections 7741 and 7742 were considered and applied by this court in the cases of Bush v. Baker, 51 Mont. 326, 152 Pac. 750, and Dier v. Mueller, 53 Mont. 288, 163 Pac. 466, they being sections 5226 and 5227 of the Revised Codes of 1907. In both of them the construction given by the supreme court of California to identical provisions found in the Civil Code of that state was adopted and approved. In the ease of Bush v. Baker, supra, this court, speaking through Mr. Justice Sanner, said: £ ‘ The statutes under which the right to recover upon these counterclaims [for rent] is asserted are sections 5226 and 5227 of the Revised Codes. These sections, as we are told in the report of the Code Commission, were taken from California, and investigation discloses that they came to us with a construction upon them which leaves no room for doubt. [Cases cited].
Upon defendant’s objection to the evidence offered by plaintiff in support of the allegations of the complaint in this behalf, the court properly excluded it. In so far as this feature of the complaint is concerned, plaintiff could not recover. He had the option to make repairs himself within the limit prescribed, or, in case he did not choose to do this, to vacate the property.
Aside from this consideration, however, it is alleged in the
The judgment and order are affirmed.
Affirmed.