20 Haw. 335 | Haw. | 1910
OPINION OP THE COURT BY
Tbis is a submission under R. L., Sec. 1748, upon an agreed statement of facts. On January 21, 1907, the plaintiff as lessor and the defendants as lessees executed a lease of certain property known as the Kauluwela Lodgings for a term of fifteen years at a rental of $1500 per year payable quarterly. The demised property was at that time and ever since has been connected with the government sewer system. The sewer rates, with penalties and interest which have 'accrued since the date of the lease, remain wholly unpaid. The lease provides, inter .alia, as follows: “It is further agreed * * * that the lessor * * * shall * * * pay the taxes levied on said premises without recourse to” the lessees. “And it is further * * * agreed, * * * that the lessees shall pay 'all other charges of' the hereby leased premises and meet all requirements of the board of health at their own cost and expense.”
The first question submitted is whether the lessor or the lessees are liable under the terms of the leasé to pay the sewer rates. In our opinion the liability is upon the lessees. Sewer rates are not taxes within the ordinary meaning of the term and are not usually understood to be taxes. “Taxes are the
On April 22, 1908, the lessor brought an action of assumpsit against the lessees for $625, being a balance of rent due under the lease from January 3 to July 3, 1908, and recovered judgment. The second question is whether that judgment is a bar to the recovery by the plaintiff of that part of the sewer rates now in controversy which accrued prior to the date of the institution of the action, the defendants contending that the claims for rent and for the amount of the sewer rates constitute a single, indivisible cause of action and the plaintiff that they are separate causes of action and that the right of action for the sewer rates had not accrued in April, 1908, because plaintiff had not at that time paid the rates to' the Territory.
On the subject of the promisee’s right of action against the
“It is urged that the plaintiff cannot recover because she has not paid the assessments. The claim is made relying on the rule, as to principal and surety, that a surety has no right of action against his principal in respect to a debt for which he is surety until he has paid the debt for his principal. A different rule is applicable here; that, wherein one party agrees not to be surety for, .but to absolutely pay the debt of, another, so that, as between the two, such party is primarily liable. We said in Stout v. Folger, 34 Iowa, 71, that The authorities agree that, upon an undertaking to pay a debt due a third person, the plaintiff may maintain an action without showing that he has paid the debt,.’ ” — Vorse v. Marble Co., 104 Ia. 541, 545, 546.
“Nor is it necessary that the plaintiff should pay the tax to the city to entitle her to maintain this action. The promise is not one of indemnity against the tax, but a promise to pay it.” —Richardson v. Gordon, 188 Mass. 279, 281.
“The covenant is broken when the defendant neglects to pay taxes or assessments duly imposed. The defendant is not at liberty to say that it is the debt of the plaintiffs; let them first pay it, and I will then pay them. It is his own debt, made so by the terms of his covenant.” — Trinity Church v. Higgins, 48 N. Y. 532, 535-538.
See also 24 Cyc. 1079, 1080; Fontaine v. Lumber Co., 109 Mo. 55, 59, 60 (18 S. W. 1147, 1148); Port v. Jackson, 17 Johns. 238, 244, 246; Ham v. Hill, 29 Mo. 275, 278, 279; Stout v. Folger, 34 Ia. 71, 74, 75; Hand v. Suravitz, 148 Pa. St. 202, 207, 208; and Broadwell v. Banks, 134 Fed. 470.
At the date of the lease there was an artesian well on the vacant lot known as -the “park” and by the terms of the lease excepted from its operation. The method at that time of furnishing water- to the excepted buildings and other property was by pumping with a gasoline engine from the well into an elevated tank about thirty feet high on the leased premises, the water flowing from the tank by gravity to the points where required ; and into a swimming tank reserved from the operation of the lease water flowed directly from the well. On October 7, 1907, the plaintiff leased to one Steere certain premises adjoining the lot known as the “park,” and’as a part of the same transaction the defendants -entered into a verbal agreement with Steere to furnish him water from the well for certain laundries which he proposed to erect on the land demised to him, at a stated rental. Subsequently, the defendants asking a high-. er rental of Steere than that -agreed upon, the plaintiff urged
The provisions of the lease relating to water are as follows: “And it is further understood and agreed that” the lessees “shall have the right into and the sole ownership excepting as inhibited by the provisions of this lease, of all of the water upon said premises and said” lessees “can dispose of said water either by sale thereof if they so desire within the term of this lease, so that no injuries shall accrue to the premises or its water rights, nor can this water privilege of water rights be sold, transgressed or assigned to any other parties or persons or corporations or copartnership without the written consent of” the lessor. “And it is further understood and agreed that all and any sums of money that comes from the sale of water shall be the sole property of” the lessees, and said lessees “shall have the right of way for laying pipes through that part of the premises known as the park without let or hindrance, they not committing waste in the laying of said, pipes and to sell said water excepting that reserve herein, when and to whom they please. * * * It is agreed moreover that” the lessees “shall supply to” the lessor “free of charge all water required for buildings and grounds expressly reserved under this lease.” In Richards v. Ontai, 19 Haw. 451, it was held, construing this lease, that ‘‘the grant to the lessee includes all of the flow of an artesian well on the excepted premises other than water sufficient for the excepted buildings 'and grounds in the condition in which they were at the date of the lease,” but the precise question as to the lessees’ duty to pump was not then before the court. As. stated in the former opinion, “The parties are presumed to have made their contract with reference to conditions as they existed at the time.” Id. 455. It is to be noted that the provision in favor of the lessor is not merely a
The lease included an agreement “that the building containing Hale Aloha is reserved for charitable purposes and any rental of any part of this building for money consideration shall be subject to agreement between parties for the first, and second part.” On December 11, 1907, the plaintiff leased to one Tong Kee a part of the buildings known as Hale Aloha, and bn December 28, 1907, wrote to the lessees: “I am having signed a lease to Tong Kee which you will have to sign in
Judgment accordingly.