128 P. 575 | Utah | 1912
This is an appeal from a judgment dismissing appellant’s complaint. The judgment of dismissal is based upon respondent’s objection interposed at the time of trial to the introduction of any evidence in support of the allegations of the complaint, upon the ground that the facts stated therein were insufficient to constitute a cause of action. The errors assigned are that the court erred in sustaining the objection and in entering a judgment dismissing the complaint.
“That said building was not finished and completed by the 1st day of October, 1905, nor by the 30th day of November, 1905, to which date the period of the completion of the same had been extended, but that on or about the 25th day of December, 1905, defendant informed plaintiff the said building was fully completed and ready for occupancy, and that plaintiff might have possession of the same. That on or about the said last-mentioned date a written lease of said theater building, whereby the defendant leased the same to the plaintiff for a period of ten years, beginning October 1, 1905, and expiring on October 1, 1915, at the rental above, and in said agreement in writing mentioned, and in which plaintiff agreed and obligated itself to pay the same to defendant, was taken out of escrow, where it had been placed at the time of
Upon the foregoing allegations appellant prayed judgment for the amount stated above.
Omitting the formal parts, the material portions of the agreement entered into between the parties to which reference has been made are as follows:
“The party of the first part hereby agrees to completely build', erect and equip at the cost of the party of the first part, in accordance with plans and specifications to be prepared by architect O. 1L Neuhausen, at the expense of the party of the first part, which plans and specifications, shall first be approved by the party of the second part, a theater building, which building shall be erected on that certain piece of land situate in Salt Lake City, Utah, and described
Counsel for respondent in this court seek to justify the ruling of the trial court upon substantially the following grounds: (1) That, by changing the dates of the lease by which the term was to commence and end three months later than originally agreed upon, the parties entered into a new agreement which in legal effect rescinded: and superseded the original agreement; (2) that since there was neither an express nor implied covenant in the new lease (agreement) which required the respondent to supply the things for the equipment of the building that are enumerated in the complaint, it is not liable; and (3) that in taking possession of the building respondent waived its right to sue upon the covenant to complete and equip the same, if it be found that such a covenant in fact exists.
the later one constitutes the only agreement upon the subject enforceable between the parties. The rule that there cannot be two inconsistent enforceable agreements between the same parties covering the same subject-matter has become elementary. We shall, therefore, do no more than to refer the reader to the note following the case of Redding v. Vogt, 6 Ann. Cas. 315, where the cases in support of the rule are collated. The doctrine, however, has its limitations which are clearly stated by the Supreme Court of Nebraska in the headnote to the case of Uhlig v. Barnum, 43 Neb. 584, 61 N. W. 749, in the following words:
“A new contract with reference to the subject-matter of a former does not supersede the former and destroy its obligations, except in so far as the new one is inconsistent therewith, when it is evident from an inspection of the contracts and from an examination of the circumstances that the parties did not intend the new contract to supersede the old, but intended it as supplementary thereto.”
The foregoing statement of the rule is approved -and followed by the same court in Walsh v. Lunney, 75 Neb. 337, 106 N. W. 447.
Bespondent, in effect, agreed to construct and equip within a specified time a certain building to be leased and used by appellant when completed and equipped as a theater. Appellant., upon the other hand, agreed to lease the building
Such agreements were under consideration by the courts in the following cases: Tuller v. Davis, 11 N. Y. Super. Ct. 187; Kiernan v. Germain, 61 Miss. 498; Piper v. Fletcher, 115 Iowa, 263, 88 N. W. 380; Swift v. East, etc., Hotel Co., 40 Iowa, 322. There is no substantial difference between the principles involved in the case at bar and in the cases above cited'; the only difference being that in the cases cited (except in Tuller v. Davis, supra) all the terms and conditions relating to the making of the alterations or repairs, including a lease, were incorporated into one agreement, while in the case at bar the lease was separate and failed to contain the covenants relating to respondent’s duty to complete and equip the building as specified in the plans and specifications. In Tuller v. Davis, supra, the agreement, like in the case at bar, simply provided that the owner of the building should complete the same as specified, and the lessee agreed to lease the same when completed. The lessee, however, took possession of the building under the original agreement without a formal lease having been drawn, and the lessor having failed to comply with the covenant to complete the building as specified, the tenant brought an action for damages for breach of that covenant. The lessor demurred to the complaint for want of facts. The argument on the demurrer was the same as in the case at bar, to wit, that the lessee by going into possession had waived his right to sue upon the covenant. The court overruled the demurrer upon the ground that the lessee had alleged in his complaint that he did not know when he took possession that the building had not been completed in accordance with the terms of the covenant. The Supreme Court of Iowa, in the case of Swift v. East, etc., Hotel Co., supra, in passing upon an alleged1 error based upon the ruling of' the trial court by which the lessor was not permitted to show on cross-examination of the lessee that he took possession of the demised premises with ■ full knowledge that the lessor had not repaired the
“If the answers had been given, and had shown that the plaintiff took possession with full knowledge of the condition, and without objection, this would not constitute a bar to his recovery, nor have shown that he waived the defects, but would only have been evidence tending in some degree to show that there were, in fact, no defects.”
■ Tbe foregoing case is approved and followed by tbe same court in a much later case, to wit, Piper v. Fletcher, 115 Iowa, 267, 88 N. W. 380. We tbink the true doctrine with respect to tbe legal effect of going into possession by the lessee is stated by tbe Supreme Court of Mississippi in tbe case of Kiernan v. Germain, supra, where it is in effect held that where tbe lessee enters into possession with full knowledge that tbe covenant to complete tbe building, or to make tbe alterations or repairs, has not been complied with by tbe lessor, tbe lessee merely loses tbe right to rescind the lease upon that ground, and after taking possession must comply with tbe covenant to pay tbe stipulated rent, but be may nevertheless sue the lessor for damages, or, in that state, in case tbe lessor brings an action to recover tbe rent, tbe lessee may recoup bis damages in that action for tbe breach of tbe covenant. This is also tbe view taken in Tiffany on Landlord and Tenant, where in volume 1, page 603, tbe author says:
“While it is stated in a number of cases that the right to require the lessor’s compliance with his covenant to make preliminary repairs or improvements as a condition precedent to the payment of rent is waived by the -lessee’s entry into possession, it does not seem that such entry involves a waiver of compliance with the covenant for other purposes, except perhaps as regards the sufficiency of the repairs actually made.”
We consider tbe foregoing to be a correct statement of tbe law upon tbe subject of waiver, -and in our judgment the rule is one which not only protects tbe rights of both tbe lessor and lessee, but also reflects justice upon both.
Counsel for respondent contend that, if appellant was dissatisfied with and unwilling to take tbe building in tbe condition it was at tbe time possession was tendered by re
We think the appellant was justified under the law to pursue the course it did. In this regard it went further than the authorities cited above required it to go, in that it clearly indicated to respondent that in taking possession under the lease it did not waive its right to insist on tne covenant to completely equip the theater building, as appears from the allegations of the complaint. But what right has respondent to complain of the course pursued by appellant ? What right or defense has it lost ?' If it was not required to do rnlore in equipping the building than it had done, it certainly is not required to do so now. If respondent ever had a defense to appellant’s claim, it still has it, and may present it at the trial. All that appellant waived by taking possession of the building was its right to object to the sufficiency or character of the equipment so far as the same had been installed in the building, but it did not waive its right to insist that
By what we have said, we do not wish to be understood as laying down a rule or measure of damages. That is a question not before us, and hence we do not pass upon it. That question, as pointed out in 1 Tiffany, Landlord and Tenant, 587, arises when, the issues of fact are being tried. Neither do we wish to be understood by anything we have said or omitted to say that appellant as a matter of law is entitled to recover for any one or all of the items enumerated' in its complaint, as constituting a part of the equipment mentioned in the agreement. Whether these things are a part of the equipment of a theater may be a. question of fact or a mixed question of law and fact, and may have to be determined from the evidence of those who are informed with respect to what is meant by equipment in referring to a modem theater. By what is meant by equipment, so far as the same relates to the safety of the theater in emergencies, it may be that the ordinances of Salt Labe City, if there are any upon the subject, may become material.
From what has been said it necessarily follows that the judgment ought to be, and it accordingly is, reversed. The. cause is remanded to the district court, with directions to grant a new trial, and to proceed with the case in accordance with the views herein expressed. Appellant to recover costs on appeal.
(*Note. — Both of the years 1915 marked with a star seem to me to be wrong. We give them here as they appear in both the transcript and the printed abstract.)