114 Ky. 841 | Ky. Ct. App. | 1903
Opinion oj^the court by
— Reversing.
The appellants, W. J. Thomas et al., leased from the appellee, Conrad, a certain building situated at the corner of Tenth and Main streets, in the city of Louisville, for a period -of ten years. The following facts appear: Conrad purchased the property for $40,000, and agreed with lessees to remodel the building in a way particularly specified, at a cost of $15,200; the work to be done under the supervision of the lessees. The lessees were to keep the property insured during the progress of the improvements, and thereafter during the term of the lease. As a rental for the property, the lessees agreed to pay the lessor an
The question here for consideration is as to the right of the lessees to place the new roof upon the building át the cost of the lessor. It is insisted that, as the lessor did not agree to repair the building during the period of the lease, or to restore such parts as might be destroyed by natural wear and tear and decay, he was under no obligation to do so, and the lessees could not do so and compel him to pay the expense.
“And the second parties further agree and bind themselves, their heirs, executors, and assigns, to make all repairs on the said property during the pendency of the said lease, and to keep the said property in good and substantial repair during the continuance of said lease, as the same is in when the improvements are completed by the said first party, natural wear and tear excepted.”
Fourth paragraph:
“At the terminaion of this lease as herein provided, the second parties will surrender peaceable possession of said premises in as good order as when received by them in its completed condition, the improvement herein stipulated for having been made by the first party as aforesaid, natural wear and tear and natural decay, and injury or destruction by fire or other cause not the fault of the second parties, excepted.”
At common law the covenant of the tenant to pay rent obligated him to do so, even though the premises were destroyed by inevitable casualty. Redding v. Hall, 1 Bibb, 539; Bohannons v. Lewis, 3 T. B. Mon., 380; Helburn v. Mefford, 7 Bush, 174. If a tenant, without any qualification, agrees to repair, and return the premises at the expiration of the term in substantially as good condition as when received, his violation of his covenant to do so will make him liable. Brashear v. Chandler, 6 T. B. Mon., 150; Proctor v. Keith, 12 B. Mon., 254. In Brashear v. Chandler the tenant agreed that he would deliver the farm to the landlord in “good, tenantable repair, in every respect.” The court held that he was compelled to do so, although the premises were not in good repair when received. In Proctor v. Keith the tenant agreed “not to suffer any of
The lessees covenanted to keep the property in good and substantial repair during the continuance of the lease, as same was when the improvements were completed, “natural wear and tear excepted.” ’They agreed to surrender the premises in as good order as when received by them, “natural wear and tear and natural decay, and injury or destruction by fire or other cause” not their fault, excepted. These stipulations certainly impose no obligation upon the lessees to make repairs upon the building rendered necessary by natural wear and tear and natural decay, or injury or* destruction by fire or other cause. Against such liability there is an express stipulation. The parties contemplated that it should be occupied for ten years as a tobacco ware
The authorities do not support the claim of counsel for
Judgment is reversed for proceedings consistent with this opinion.
June 3, 1903.
Response to petition by appellee for rehearing:
The assignees of the lessees acquired all rights in the con tract of lease which they had, one of which is to have it enforced according to the terms in the same manner as the lessees could have done: The landlord is asserting a claim under the lease against the assignees of the lessees. Certainly, any claim which would have been available as a defense by the lessees is likewise available as a defense by their assignees. The same proceeding in the case that would .have been necessary to have enabled the lessees to establish their defense is open to their assignees.
The petition for a rehearing was considered by a judge other than the one who delivered the opinion.