63 So. 480 | La. | 1913
Lead Opinion
Plaintiff leased a warehouse building from defendant for the purpose, expressed in the lease, of conducting therein a public warehouse business. One of the beams supporting one of the floors of the warehouse having given away under the weight of the merchandise stored upon it, and other beams of other floors having shown signs of weakness by sagging, the plaintiff called upon the defendant to remedy the situation, and the defendant, after consulting with counsel, brought suit, alleging that the weight which the floors had been constructed to carry was 150 pounds to the square foot, with a factor of four, and enjoining plaintiff from loading them in excess of 200 pounds, and thereupon plaintiff brought the present suit, asking for the dissolution of the lease and for damages. The rent was payable monthly, and plaintiff had given notes for it. At the end of the month in which the suit was filed, the note then maturing not having been paid, the defendant company notified plaintiff that it exercised its right to cancel the lease for nonpayment of the rent, and accompanied the notice by the return to plaintiff of all the notes. Plaintiff accepted them, but with the qualification that he would consider the cancellation to be simply in compliance with the demand of the pending suit. The warehouse was a government bonded warehouse, out of which goods could not be removed without permission of the government; and several months elapsed after the cancellation of the lease before this permission could be obtained. The lease having thus been canceled, the suit remains one exclusively in damages.
“Floors of all stores and warehouses to be calculated to carry a dead load of 250 pounds. All calculations for strength of floors of buildings .to be with a factor of five.”
By “a factor of five” is meant that the floor must be five times stronger than necessary to carry the ordinary weight it is designed to carry; so that, under this ordinance, a warehouse floor must be designed to sustain theoretically a load of five times 250, or 1,250 pounds to the square foot.
Plaintiff contends that, in view of this law regulating the construction of buildings, and intended for the safety and protection of life and property, there enters into every lease of a building for warehouse purposes in the city of New Orleans, if nothing be said as to what weight the floors of the
This contention of defendant is but the presentation in another form of the main issue in the case, which is whether the floors of the building should have been capable of supporting 250 pounds to the square foot, with a factor of five, in order to come up to the requirements of the lease. For a lessee does not owe rent unless the leased premises are delivered to him, and if he does fio|; owe rent, he cannot default upon the payment of rent; and the leased premises cannot be said to be delivered to him if, the lease calling for a building whose floors are capable of supporting a weight of 250 pounds, with a factor of five, to the square foot, there is delivered a building designed to support 150 pounds, with a factor of four, and the delivery is accompanied by an injunction forbidding the use of the building beyond this reduced weight. If, therefore, the plaintiff is well founded in his said contention as to the 250 pounds, he ceased to owe rent from the moment he notified defendant, by his suit in cancellation, that he was unwilling to accept the building as a compliance with the obligation under the lease to deliver a building designed to sustain a load of 250 pounds to the square foot, with a factor of five. This would be very clear if plaintiff had not gone into possession at all, but, discovering the inadequacy of the building, had refused to accept possession, and had brought suit instead for cancellation, and the suit had proved to be well founded. In such a case a contention on the part of the lessor that the juridical cause of the cancellation of the lease was not his own failure to deliver such a building as the lease called for, but was the failure of the lessee to have paid the rent at the end of. the first month, would not have been entertained seriously. And it is plain that the fact of having gone into possession is legally insignificant, if done under the false impression that the building was such as was called for by the lease. A lessor who thus allows a lessee to go unwittingly into possession of an inadequate building does but superadd injury to his default.
We concur readily in the contention of plaintiff that, in view of the above transcribed building law of the city, requiring warehouse floors to be designed to carry 250 pounds to the square foot with a factor of five, he had a right to assume (in the absence of anything to the contrary either said or written) that this warehouse was of that character, and that the leasing of it by defendant for warehouse purposes amounted to a representation that it was such.
But this alleged defect could not have misled any one, since it is evident enough that the weight which the floors were to be “calculated to carry” was the weight to be on them when the space above them was full, not when empty; evidently, it would be useless, if not absurd, to provide by ordi
Suffice it to say that plaintiff was utterly without right to make any alterations in defendant’s building, and that defendant when called upon to make these alterations chose, instead, to file the injunction suit prohibiting the loading of the floors beyond 200 pounds.
Defendant cites cases where it has been held that a lessee cannot claim damages resulting from the want of such repairs as a lessee is authorized to make and pay for out of the rent. These cases are not in point, since the building was brand new, and did not need repairs.
Defendant having breached its contract, owes the damages which plaintiff has suffered as a consequence of such breach. The items are as follows:
“So if I let my house to a, person in his quality as a tradesman, or for the purpose of being used as an inn, and the tenant is evicted, the damages and interests for which I am answerable to him will not be confined to the expense of removal and the rents, as in the former instance. The loss of custom, if he cannot meet with any other .suitable house in the neighborhood, ought also, in some degree, to be taken in the account; for, having let my house for the purpose, of a shop, or an inn, this kind of damage is one whereof the risk is foreseen, and to which I am considered as having tacitly submitted.”
The defendant must be held to have contemplated at the time of entering into this lease that if, from any cause, the building failed to answer the purposes of the lease, plaintiff would have to move into another, and would have to move á second time if he found himself compelled to move into an unsuitable building until he could procure a suitable one.
9. Loss of business. This item is not proved with legal certainty.
The jury gave plaintiff judgment for $4,-500. What particular items this amount was allowed for, we are not advised.
The judgment appealed from is reduced to $3,988.62, and as thus amended is affirmed. Plaintiff to pay costs of appeal.
Rehearing
On Application for Rehearing.
“The judgment appealed from is reduced to $3,788.62, and as thus amended is affirmed. Plaintiff to pay costs of appeal.”