Landlord and Tenant. Contract, Performance and breach. Practice, Civil, Exceptions. Evidence, Presumptions and burden of proof. Pleading, Civil, Answer.
In an action by the owner of a business building against his former lessee of certain floors of the building under a lease which the plaintiff had terminated for non-payment of rent, on a covenant that in such event the lessee should be liable to the lessor for all loss and damage sustained by the lessor on account of the premises remaining unleased or being let for the remainder of the term for a less rent than that reserved in the lease, the plaintiff must show that he used reasonable diligence to make the loss or damage as light as he reasonably could but the reasonable diligence required of him relates to letting the leased premises for the remainder of the term, and the plaintiff is not required to join any other part of the building to the premises covered by the terminated lease or to try to let the premises for a longer term in order to make a more advantageous lease.
In an action by a landlord against his former lessee under a lease which the plaintiff had terminated for non-payment of rent, on a covenant that in such event the lessee should be liable to the lessor for all loss and damage sustained by the lessor on account of the premises remaining unleased or being let for the remainder of the term for a less rent than that reserved in the lease, where the leased premises consisted of the third, fourth and fifth floors of a large building used for business purposes, the whole of which belonged to the plaintiff, and there remained an unexpired period of sixteen months out of a term of five years, upon the issue whether the plaintiff had used reasonable diligence to relet the premises for the unexpired part of the term, it is error for the presiding judge, after giving to the jury the correct instruction that the plaintiff was "not required to make additions to or alterations in the premises as an aid to securing a new tenant" and was under no obligation "to let the premises for a longer term or to put any other premises in with these premises in order to get them let," to leave it for the jury to determine whether the principle of the instruction should be applied to the case, instead of stating the principle to them as a rule of law which they must follow.
A presiding judge properly may refuse to make a ruling upon the effect of isolated facts considered apart from others bearing upon the same general question.
In an action by a landlord against his former lessee under a lease which the plaintiff had terminated for non-payment of rent, on a covenant that in such event the lessee should be liable to the lessor for all loss and damage sustained by the lessor on account of the premises remaining unleased for the remainder of the term, the plaintiff must show, not only that the premises remained unoccupied, but also that this state of things was in no respect due to his own negligence, and the burden is upon him to prove that he exercised due diligence to relet the premises. Where the answer in such a case sets up negligence on the part of the plaintiff, it does not allege matter in confession and avoidance but merely denies diligence in reletting, which is an essential element of the plaintiff's case.
HAMMOND, J.
These are two actions of contract brought, the one against the lessee and the other against the guarantor, upon a clause in a lease given by the predecessors in title of the plaintiffs, which provides, inter alia, that for non-payment of rent the lessors may enter upon the premises and "repossess the same as of their former estate; and, in case of such determination, the lessee shall be liable to the lessors for all loss and damage sustained by the lessors on account of the premises remaining unleased, or being let for the remainder of the term for a less rent than that herein reserved." The lease ran by its terms until August 1, 1904, but on April 4, 1903, the plaintiffs terminated it by entry for non-payment of rent, and then tried unsuccessfully to relet the premises.
At the trial the only defence relied upon was that the plaintiffs "did not use due, proper and reasonable diligence to relet." Upon this question the judge ruled in substance that the plaintiffs owed to the defendant the duty to use reasonable diligence and to make the loss or damage to the defendants as light as they reasonably could. As a statement of a general rule applicable to cases like this, the ruling was correct. International Trust Co. v. Weeks, 203 U.S. 364. See also same case, 125 Fed. Rep. 370. But we think the plaintiffs have just cause for complaint as to the way in which the judge dealt with this principle when applied to the facts of this case.
The leased premises consisted of the third, fourth and fifth floors of a large building used for business purposes. The lease was for five years from August 1, 1899. Upon complying with the terms of the lease the lessee had the right to occupy these floors with stairways and other appurtenances for that five years, but the lease did not give any right to occupy the premises for any other five years, or to occupy any other part of the building. The lessee vacated the premises about September 1, 1902. At that time it had the right to hold the premises until August 1, 1904, and, with the written consent of the plaintiffs, to assign or sublease, if it could, provided always that it paid the rent and otherwise complied with the terms of the lease. Instead of doing that it chose to abandon the premises and default as to rent, giving to the plaintiffs the right to terminate the lease. The lessee thus voluntarily placed in the hands of the plaintiffs these premises and only these premises, and even them only for the time between April 4, 1903, to August 1, 1904, a period of about sixteen months. It was only to these premises and for these sixteen months that the duty of the plaintiffs attached. Although the plaintiffs were the owners of the whole building, yet the defendants had no right to call upon them to join any other part of the building to the premises which the lease had covered in order to make a more advantageous lease. In this respect a reasonable diligence to relet the premises for the unexpired term named in the lease was all the duty the plaintiffs owed to the defendant.
While in charging the jury the presiding judge had said that he "should say [that] the lessors were not obliged in order to let these premises to put other premises in with them," yet there was other language in the charge somewhat weakening the effect of this statement, and seeming to leave the question to the jury. At the close of the charge the plaintiffs took exceptions to it, contending among other things that on the whole charge the judge had left to the jury to "determine whether it was the duty of the plaintiffs to hitch to the short term remaining of the defendants' lease a longer term of the same premises or to include other premises." Whereupon the judge further instructed the jury upon these points. Upon a careful reading of the charge, including its supplement so far as material to the point now under consideration, it appears that while the judge stated it as his view that, in order to relet, the plaintiffs were under no obligation "to let the premises for a longer term or to put any other premises in with these premises in order to get them let," yet he did finally leave the question to the jury to determine whether that principle was applicable to the facts of the case. In this there was error. The measure of the plaintiffs' duty in this respect was a question of law and not of fact, and the plaintiffs were entitled to have the rule stated to the jury as a rule by which they were to be bound. Because this was not done the plaintiffs' exceptions must be sustained.
In view of the result to which we have come, it is unnecessary to consider the first ruling requested. The second and third were rightly refused, for reasons already stated. The fourth and fifth were properly refused in the form in which they were presented. The judge seems to have dealt in a proper way with them. The sixth was given. The seventh and eighth were objectionable as calling for the ruling of the judge upon the effect of certain isolated facts when considered apart from others bearing upon the same general question, namely, whether the plaintiffs exercised due diligence. Whether the plaintiffs by pursuing the matter with the Samuel Ward Company could have succeeded in letting to that concern, and whether they ought to have tried it, were only some of the considerations to be passed upon by the jury on the question of the diligence of the plaintiffs.
The ninth request was properly refused. This was not a case where negligence was the ground upon which liability was based. It was incumbent upon the plaintiffs to show not only that the premises remained unoccupied, but also that this state of things was due in no respect to their own negligence. In other words, it was upon them to show that they had performed the duty owed to the defendant to exercise due diligence to relet. The plaintiffs could not therefore safely have rested with the simple proof of the non-occupancy of the premises. Had there been no further evidence it could not have been found that due diligence had been proved. When therefore the answer sets up neglect of the plaintiffs it must be considered not as a defence in the way of confession and avoidance, but as a denial of the existence of one of the essential elements of the case of the plaintiffs, namely, due diligence as to reletting. The burden of showing due diligence was upon the plaintiffs.
It is unnecessary to consider the other exceptions.
Exceptions sustained.