139 Mich. 94 | Mich. | 1905
This is an action to recover a balance claimed to be due for the rental of a house and lot in the city of Detroit, and also for damages resulting to
Numerous questions are presented in the brief of appellant’s counsel, but we think that all may be considered under two or three heads.
It is clear that, in the absence of any agreement modifying the terms of the written lease, the holding over by defendant would have constituted him a tenant for one year from May 1, 1901, and the first question presented, therefore, is whether there was a modification of this agreement. The plaintiff'is a resident of New York City. In February, 1901, defendant wrote plaintiff, referring to the fact that the natural gas pressure had become very low, and of the possibility of its being cut off entirely, stating he had been compelled to put in coal grates, and, in addition, to keeping the furnace going to its fullest capacity, had difficulty in keeping warm; that a grate had been put in the dining room at a cost of $20, for which a bill was sent; and the letter concluded:
“If the gas is exhausted next winter, as it bids fair to be, I am told it will be necessary to have a new furnace for coal, as the life has been entirely taken out of the present one by the use of gas.”
There was no answer to this letter, but in April one
“ As I told your cousin when he called, I would remain through next winter, if I can know that the house will be satisfactorily heated; but do not want until cold weather to learn what you will do, and wish you would write me now, and, if you will provide another furnace, kindly give me your assurance to that effect.
“Very truly yours,
“A. H. Babcock. R.”
And to this plaintiff replied:
“ I note what you say regarding the furnace, and will give you my assurance that if it is found necessary, a new furnace shall be put in before next winter. I desire, however, that the present furnace be thoroughly examined by the makers, and have written to Mr. Teagan, requesting that he have a man sent up there. I am of the opinion that either the chimney or the pipe is stopped up, which prevents draught. Again I say that if this furnace can*97 not be made to give sufficient heat, I will have a new one put in.”
(It is evident that the cousin referred to in the letter of May 7th is plaintiff’s brother-in-law, Teagan.)
It would be difficult to find a much clearer case of ratification than that shown by these letters. It must have been evident to plaintiff that assurances had been given by Teagan to defendant, and that it was because of those assurances that the defendant had continued to occupy the premises after May 1st.
It is sought by plaintiff’s counsel to maintain that this agreement contained in the letter of May 14th was nudum pactum, because at that time defendant had entered upon a new term, and plaintiff was not bound to make repairs under the terms of the lease. But this condition loses sight of the doctrine of ratification. Defendant had in fact had assurances that plaintiff would make the furnace right, and it was in pursuance of assurances supposed by him to be made with authority that he had continued to occupy the premises. Plaintiff reiterated the assurances, and affirmed what his supposed agent had already done. Ratification relates to the time of the performance of the acts ratified, and the present case is as though the original contract or agreement between Teagan and defendant had been made with full authority on the part of Teagan. 1 Am. & Eng. Enc. Law (2d Ed.), p. 1213. We think, then, the case should be determined upon the assumption that there was the agreement substantially as reiterated in the letter of plaintiff under date of May 14th. Following upon this agreement, under date of September 4th, defendant wrote plaintiff as follows:
“ I would say that the supply of natural gas was permanently discontinued last month and public notice given, and I would ask that you give the matter of a furnace your attention at once, as I want to put in a supply of coal before there is a raise in price, but at the same time, I do not want to do anything until the matter of furnace is attended that I may act accordingly.”
“I am writing Mr. J. O. Teagan today to make arrangements for perfecting the heating apparatus of the house. You can rest assured the furnace will be properly and promptly attended to and can go ahead and order your coal. I wish you would call Mr. Teagan up on your ’phone at his home or office and give him the name of the furnace and any such other information he may want.”
On November 5th defendant wrote to plaintiff:
“ Regarding the furnace would say that we are having a cool spell just now and I am unable to satisfactorily, heat the house with the furnace alone, having to call on the grates %>r warmth. I will wait for some pretty cold day when I will have your brother-in-law, Mr. Teagan, come up and try his hand at running the furnace and give it a good test.”
To this plaintiff replied :
“ As to the furnace if it does not work properly, we will see that it is made to do the work as it is intended to do. You indicate the correct course. Call up Mr. Teagan and have him take a hand at it.”
Again, under date of December 2d, defendant wrote to plaintiff:
“ As the furnace will burn the coal about as fastas one can put it in, but although a good fire can be obtained it seems impossible to get the proper amount of heat from it and even in the present weather we fall back on the grates. It has been explained to me that furnaces that have used natural gas are afterwards useless with coal, as the gas seems to take life out of the iron and I know that in my own house where I formerly used natural gas, my tenant has just told me of his inability to make it work with coal, and very likely the same trouble exists there as with my furnace. Kindly let me hear from you in regard to the matter.”
The testimony on behalf of defendant tended to show that, notwithstanding the efforts to put this heating apparatus in condition, the means provided were wholly insufficient to heat the house, and finally, on the 27th of
Upon this branch of the case it is again urged by appellant that Teagan was without authority. It is said that he had not been given authority to accept a surrender of these premises. We think this contention may be accepted as correct; but the circuit judge was of the opinion that, as Teagan had charge of the matter of putting this furnace in condition, it was proper for defendant to intrust to him the duty of seeing that the water pipes were properly protected. The plaintiff’s failure to recover upon this branch of the case did not result from the fact that there was a surrender in law and an acceptance, but from the fact that the defendant intrusted to the plaintiff’s agent, Teagan, the duty of seeing that the water pipes were protected. It is not the theory of the defendant that his tenancy was terminated by a technical surrender, but that, the plaintiff having failed to make the furnace do the work contemplated and agreed upon as a condition to the continuance of the lease, this relieved him from the payment of further rent, authorized him to leave the premises, and that in leaving the premises he was justified in intrusting their care to the one who had been commissioned by the plaintiff to see that the furnace was put in condition. We think this view of the case was justified by the facts and relations of the parties, and that, therefore, it was not error to charge that, if defendant called upon Mr. Teagan, and if defendant, before leaving the premises, told him that he intended to do so, and that Leonard Bros, were to do the packing, and asked Teagan
The other questions presented in the case seem to us not to merit special discussion. We are convinced that substantial justice was done, and the judgment.will be affirmed.