25 Haw. 253 | Haw. | 1919
OPINION OF THE COURT BY
On November 13, 1918, the plaintiff instituted summary proceedings in the district court of South Hilo, Hawaii, under chapter 154 R. L. 1915 for the possession of the premises involved in this cause, claiming a forfeiture by reason of the violation of certain covenants contained in the lease under which the defendant held possession of the said premises from the plaintiff. Upon a trial in the district court judgment was in favor of the defendant, from which the plaintiff prosecuted an appeal to the circuit court of the fourth judicial circuit. Trial was had in the circuit court, jury waived, where judgment was again had in favor of the defendant and plaintiff brings exceptions to this court. The lease in question was dated October 1, 1913, and provided for a term of five years but contained a clause of renewal for a like term upon the election of the lessee. The lessee had availed itself of this option and. accordingly at the time of the declaration of forfeiture occupied the premises under a term which would not expire, unless forfeited, until October 1, 1923. Said lease contains among others the following covenants on the part of the lessee: “That it will also pay all taxes, rates, assessments, impositions, duties and other outgoings of every description to which the interest of the lessee in the premises hereby demised and or any interest therein hereby conveyed or any part thereof are now or may during said term or any extension thereof shall become liable, and whether the same are or shall be assessed to or be payable by law by either the lessor or lessee;” “That it will out of its own moneys during the whole of said term or
As one of the grounds for forfeiture the lessor relied upon the failure of the lessee to repair the sidewalk in front of the demised premises. The evidence shows, and the court found, that the sidewalk in question was constructed of concrete and that one of the divisions 3x4 feet was cracked and depressed. ' The covenant of which it was claimed this was. a breach provides in effect that the lessee will out of its OAvn moneys during the whole of said term or any extension thereof, malee, build and maintain all sidewalks required by law to be made, built, maintained and repaired upon or in connection with the said premises. The default of the lessee, to be a ground for forfeiture, must come strictly within the covenant. The covenant requires, as we have just shown, the lessee to make such repairs as are required by law and in the absence of a showing that the repair of said sideAvalk Avas required by law no bréach of this covenant has been shown.
Another ground of forfeiture relied upon was the alleged failure of the lessee to properly maintain the sewer which served the demised premises. In its brief the lessor has not discussed this ground of forfeiture other than to list it among the breaches of covenant relied upon. Under these circumstances Ave might well consider this ground of forfeiture waived. But the evidence upon this point as disclosed by the record is so overwhelmingly to the effect that the lessee did all that could be required of it in the care of the sewer that we fail to find any
At the trial the lessor asserted as a ground of forfeiture the fact that the lessee had erected upon and under the sideAvalk in front of the demised premises a gasoline pump and tank. There is no question of fact involved in this point it being admitted that the lessee did erect a gasoline pump upon the sidewalk, connected with a tank situated beneath the sidewalk. It is not quite clear which covenant in the lease it Avas claimed that this was a violation of but we assume that it Avas contended that it violated the covenant against the making of any alteration of the premises AAdthout the previous written consent of the lessor. This ground, like the one just discussed, has been ignored by the lessor in its brief and we could with propriety by reason of this fact treat it also as waived, but Ave think the undisputed facts fail to bring it within any covenant of the lease. The improvement was not upon the demised premises. The pump* was situated upon the sideAvalk and the tank beneath the sidewalk. If any one has a right to complain of the erection of this pump it would be the authorities having control of sidewalks and not the lessor.
The lessor also relies upon an alleged breach of the covenant by which the lessee agreed to keep said premises in a strictly clean and sanitary condition and to observe and perform all the rules and regulations of the health authorities for the time being. The court found as a fact that there had been no Adolation of this covenant. In this we think it Avas amply justified by the evidence and its finding in that regard Avill not be inquired into by this court.
There is a further clause in said lease, which we have quoted, which we think has a decided bearing upon these claims of the lessor and that is the clause whereby the
Another ground of forfeiture which was relied upon by the lessor, and which it insists upon in its brief was the removal by the lessee of a platform or balcony which it erected inside of the building upon the demised premises shortly after it took possession thereof under the lease. The evidence shows that this balcony was fourteen feet wide by forty feet long extending across one end of the building; that it was erected upon and supported by its own uprights and was not in any manner attached to the building; that it was approached by a flight of stairs and was for the accommodation of the lessee’s office force and of bins of various sizes in which were kept small automobile parts. It is also shown by the evidence, which is undisputed, that some five or six months prior to the institution of this suit the lessee removed said bal
One of the breaches of covenant, and we might say the principal one, relied upon by the lessor as a ground for forfeiture is the failure of the lessee to pay the taxes upon said premises. There is no contention that the lessee has in fact paid any of the taxes assessed against the property. On the contrary it freely admits that it has not paid them or any part thereof. The facts in connection with the return, assessment and payment of taxes, are in ’substance as follows: The lease in question, it will be recalled, is dated October 1, 1913; beginning with the year 1913 and including the year 1918 the lessor returned the demised premises together with other property owned or controlled by it for taxes; the property in question was only a portion of the premises held by the lessor under a lease from F. S. Lyman; the taxes upon the entire property leased by the lessor from Mr. Lyman were assessed each year to the lessor by reason of the fact that it made the tax return each year in its own name; the lessor having returned the property held by the lessee under the lease in question each year during
The covenant obligated the lessee to pay all taxes to which the interest of the lessee in the demised premises is now or during said term or any extension thereof shall become liable and whether the same is or shall be assessed to or be payable by law by either the lessor or the lessee. We think that this covenant placed upon the lessee the obligation to pay the taxes even though they' were assessed to and payable by law by the lessor. It
Lessee’s next excuse for not having paid the taxes is that under the circumstances of this case a demand by the lessor for reimbursement is a prerequisite to its right to declare a forfeiture. That a demand for the payment of taxes is not a prerequisite to the right to declare a forfeiture for their nonpayment has been held by this court in Cornwell v. Colburn, 15 Haw. 632, and Kanakanui v. De Fries, 21 Haw. 123. The lessee admits that such holding is now the law of this jurisdiction but insists that since the lessor voluntarily paid the taxes the rule announced by these cases should not control in this case. As we have already said, the lessee could have made a separate return of the property for taxes and thereby put itself in position to comply with the covenant contained in the lease. This it failed to do and we cannot see how this fact would change the rule announced in the cases above cited. Our opinion is therefore that the failure of the lessee to pay the taxes upon the demised premises constituted a breach of the covenant contained in said lease obligating it' to pay said taxes and would justify the lessor in declaring a forfeiture unless, as- further contended by the lessee, the acceptance of rent after the breach and other conduct of the lessor waived its right to declare a forfeiture for such breach.
This brings us then to a discussion of the main question which has been presented by the parties in their 'briefs, namely, the question of whether or not the lessor waived its right to declare a forfeiture in this case. In
During the course of the trial the trial judge viewed the premises in question, to which action the lessor excepted. The evidence adduced prior to the viewing of the premises by the judge was to the effect that the premises were at that time in about the same condition as they Avere at the time of the declaration of forfeiture. Under these circumstances we think it Avas entirely proper for the trial judge to view the premises. It is not an uncommon practice in this jurisdiction for juries to vieAV premises involved in the matter on trial under similar circumstances and we can see no reason why in a jury waived case the trial judge should not be permitted under such circumstances to view the premises.
The lessor also excepted to the admission in evidence of statements by the witness Forbes as to the location of the sewer serving the demised premises, it being the contention of the lessor that the testimony of said witness was based upon hearsay. The witness on direct examination having testified in detail as to the location of the sewer was asked upon his cross-examination as to where he got his information. His reply was that he got his information from the plans on file in the board of health office. Thereupon a motion was made to strike all of his testimony as to the location of the sewer. Before ruling upon this motion the trial judge asked the witness if he had ever seen the sewer being worked upon, to which he replied in the affirmative and the motion, to strike was thereupon overruled. In this we find no error as it does not appear, as contended by the lessor, that the witness-' information was obtained entirely from hearsay.
Finding no merit in the exceptions the same are overruled.