47 Md. 562 | Md. | 1878
delivered the opinion of the Court.
The appellees, plaintiffs below, were tenants of the •appellant of a certain mill with premises and a tract of
The contract between the parties is contained in articles, of agreement, which wqre offered in evidence by the plaintiffs, but the defendant objected that they were inadmissible because of an alleged variance between them and the-contract, set out in the narr. The objection was overruled and the evidence admitted, and the ruling of the Circuit Court forms the subject of the first bill of exceptions.
The contract set out in the narr., is “that the said William Stultz, further agreed to keep the soid mills and' machinery, loater-power, and fencing on the said premises, in good repair, elemental casualties included, in a reasonable time.”
The articles of agreement state the contract as follows,. “And the said Stultz further agrees to keep the said mills, and machinery, water-power and fencing on the said premises in as good repair as they now are, elemental casualties included, in a reasonable time.”
In the declaration the words “as they now are,” are-omitted, and this omission the appellant contends, is a material and fatal variance.
It was decided in Middlekauff vs. Smith, 1 Md., 329, 340, that the covenant in a lease “ to repair’’ generally or “to keep the premises in repair,” imposes upon the covenantor the legal obligation to keep the premises in as-good repair as tohen the agreement was made.
The Court say, ‘ ‘ where an old house is rented with the usual covenants to keep the same in repair, the covenantor will not be bound to put it in an improved state, nor to-avert the consequences of the elements, but only to keep it in a state in which it was at the time of the demise, by timely expenditure of money and care.” Guttridge vs. Maynard, 7 C. & P., 129 ; Archbold’s Law of Landlord and Tenant, 176.”
In pleading it is not necessary to set out the contract in totidem verbis, it is sufficient if it be correctly stated ■according to its legal force and effect.
The omitted words being immaterial, in no respect affecting the construction or legal effect of the contract, it was not necessary to set them out in the declaration.
We therefore affirm the ruling of the Circuit Court in this exception.
The second bill of exceptions was taken to the rejection of •certain evidence offered by the defendant. In order to dispose of this exception, it is necessary to state the substance of the testimony which had been given in the case.
The plaintiffs proved that from the last of September 1874 to the 1st, or 2nd, of April 1875 (during their occupancy under the lease) the supply of water to the mill was defective, because of want of repair on the mill-dam and head-race connected with the mill, and supplying the water necessary to operate the same, and that they sustained damages on account ■ thereof, by means of not being able to operate the same to the same advantage as if there had been a full supply of water; that on or about the 1st or 2nd, of February 1875 the dam was destroyed by an extraordinary flood, and was not repaired or replaced by the •defendant, after receiving notice thereof, before the 1st of April 1875, and the plaintiffs were not able to operate said mill during said period, in consequence thereof, and sustained damage. Evidence was offered tending to prove that the mill had been carried on for fifty years, and that the water-power thereof was supplied by means of a race ■about four hundred yards in length, which intersected the .stream “Pipe Creek,” from which theywater-power to the
- The defendant then offered to prove by a competent witness, that the break, as well as the holes and openings in the race, could have been personally fixed by the plaintiffs, and that the plaintiffs could have themselves easily repaired the same; and further, that if the same-had been repaired or fixed by the plaintiffs, a sufficient, supply of water to operate the mill would have been furnished by the race, that- is, that a sufficient supply of water entered the race from the stream, at the mouth or head of the race during the period between the first of February and the first of April 1875, if the break and the holes and openings ■ in the mill-race hank had been repaired ; and further, that the break, holes and openings, before mentioned were of such a character as were customarily and usually repaired by millers, and that it was by custom the duty of the miller to repair the same.
This ruling forms the subject of the second bill of exceptions.
By the contract the defendant bound himself to keep in repair “the water-power, elemental casualties included.” Under this contract it was his duty to repair the breach in the mill-race bank, in a reasonable time after receiving notice of the damage. There is a stipulation in the articles of agreement by which the plaintiffs covenanted, “that all small repairs that they can personally fix up or easily do themselves, they will do and reqoair themselves without any charge to the said Stultz.”
Now as we construe this covenant, it imposed no duty or obligation on the plaintiffs beyond what the law would impose on them in their character as tenants, and which required of them “the ordinary care and attention which is usually required of millers in operating mills, and which indeed constitutes a part of their trade; such for instance, as cleaning and dressing the stones, adjusting and regulating the general machinery of the mill, cleaning the race of such deposits or accretions as would follow the ordinary use of the mill, and such other similar acts which demand the miller’s skill, yet which require neither the expenditure of money, nor the consumption of much time or labor.” Middlekauff vs. Smith, 1 Md., 339, 340. But if the covenant on the part of the plaintiffs should be construed as embracing more than what otherwise would be their implied duty as tenants, still we are of opinion
In support of this proposition no authority need be cited.
Judgment affirmed.