Gilchrist v. Weil, Joseph & Co.

longer suitable to be used for commercial purposes, or for such purposes as it was fairly and reasonably designed to accommodate in its original construction. Mere temporary inconvenience occasioned by a fire would not justify or authorize a tenant to vacate premises, nor would it have the effect to terminate the lease. Mere inconvenience, the mere cessation or interruption to business for a day or two would not have that effect. It must go to the extent of rendering the premises untenantable so that the situation requires a removal elsewhere.

Now, it is hardly within the province of the court to indicate, I think, just what state of facts would justify a removal, or would justify the terminating of a lease. I only propose, in a general way, to give you general rules for your guidance. As I say, mere temporary inconvenience, a mere wetting of the walls by itself, standing alone, as a circumstance, the wetting of the floors, the mere putting out of the fire by flooding a cellar, if it could be removed within a short time, if the effects could be overcome within a short time-any one of these things alone would not constitute such destruction, or such an injury to the premises as would justify a lessee in terminating a lease. Those are all circumstances to be considered, however, together with other things, with a view of determining whether the building, as a structure, has undergone such injury and such destruction as a whole that it is no longer a structure suitable for the business for which it was designed. If this fire was of such extent and so destroyed these premises as a whole (and I now refer in what I say to the premises as a whole)-if they were injured to such extent that there was a burning away of the roof or of the windows that is spoken of as to make these premises, as an entirety, unfit for occupancy, unfit to be used in a commercial business, then it was the right of the lessees to vacate the premises and terminate this lease; it was their right to insist upon its being terminated, if such a condition of things occurred. If there was such a destruction or such injury, if it went to the extent that the building, as a whole, was untenantable, unfit for occupancy, then they would have the right, we think, under the statute, under this lease to insist upon its termination.

Now what do you find the fact to be upon the subject? What was the extent of the injury? Was it one that made this building,as a whole, untenantable, unfit for use? Did it go to such extent as that the business could not longer be prosecuted in that building, render it wholly impracticable to undertake to carry on the business in this building? Did it assume such proportions as to make it untenantable and unfit for occupancy? If it did not then these lessees are liable upon this lease for the payment of rent, and the fact that they moved out would not change that result; they would still be liable for whatever may be due upon the lease unless there had been an assent to their going, a surrender consented to, and that I do not understand to be claimed here; but that on the contrary this plaintiff insisted that they were still liable, that the con

Cuyahoga Common Pleas.

dition of things did not justify a termination of the lease. But if it did go to the extent of rendering the premises unfit for occupancy within the rules I have given you upon that subject then they would not be liable for the payment of rent. Testimony has been offered tending to show that the greater part of the injury resulting from the fire occurred in No. 67, and it is claimed by counsel that even if the injury to 67 was of such a character as to render that portion of the premises unfit for occupancy, that it being a separate messuage or tenement in the sense of being a separate building, although embraced in the same lease, that there may be an apportionment here of the rent due; that is to say, that even if the part covered by No. 67 became unfit for occupancy that it did not follow necessarily that therefore the whole premises were unfit for occupancy, and that these lessees still should be held for the payment of rent for premises 63 and 65, provided the premises covered and known by those numbers were not so injured as to be unfit for occupancy. I have already said in substance, and will repeat it again so that you may have it in mind in connection with what I have to say on this subject. What I have already said relates to the premises as a whole, and no matter where the fire occurred, if it had the effect upon the whole premises to render them untenantable, went to that extent and was so far toward a total destruction of the premises and constituted such an injury to the whole premises as to render them untenantable and unfit for occupancy, then, as I say, there could be no recovery; that is, the defendants would have the right in such a case as that to terminate this lease. But I am disposed to say to you upon this subject as to the premises known as No. 67, that if the fire was of such extent as that it only had the effect to render the premises known as No. 67 unfit for occupancy or untenantable, and the other premises did not sustain such an injury as to render those premises, Nos. 63 and 65, unfit for occupancy, if it did not go to the extent of making it necessary to abandon the whole premises, did not go to the extent of making it impossible to transact that business, as to render it impracticable to prosecute the business in the remaining premises, and they still could carry on the business there without serious or substantial interruption, then, we think, though the premises known as 67 were destroyed so as to be unfit for occupancy, it would not have the effect. to terminate the lease as a whole lease, but would still leave the lessees liable to pay a proportionate part of the rent for the premises so left in a rentable or in a tenantable condition. You will consider the situation as you find it from the proof as to the floors known as No. 67. To what extent were they injured? Was there a destruction there or an injury so as to render that portion of the premises untenantable, without its affecting the other premises so as to render those untenantable? If so, we think this rent may be apportioned, and that in the event you find the other premises still were left in a tenantable condition, and that there is a liability to pay rent for that reason, you should then make such a deduc

Gilchrist v. Weil, Joseph & Co.

tion as you would be justified in making upon the basis of whatever these premises were worth, that is, the premises known as No. 67, were worth as compared with the whole premises. Now, the testimony upon that subject is very meagre, and I do not know but I would be justified in saying that it is confined substantially to what is shown by the lease itself in this provision: "It is understood that if the first party be unable to get the third and fourth stories of No. 67 vacated by March 1, 1885, then the rent herein stipulated to be paid by this second party shall be reduced $25 per month so long as they may be kept out of possession of said third and fourth stories, which time shall not exceed one year from March 1, 1885." That is perhaps the only evidence that would be before you as to what the two floors in No. 67 were regarded as worth as compared with the other premises, and what proportional part of the $2,500 was made up of the rent of these two floors. But there is that circumstance or that fact before you. They have been spoken of there as, in certain contingencies, that an abatement should be made of $25 a month. Should you have occasion to consider that branch of the case, in view of all that I may say to you, then you can look to that circumstance with the view of aiding you in getting at the facts on that question.

Now, I think I have said about all I deem is necessary to the jury in submitting this case to you. Quite a number of requests have been submitted upon both sides, but I believe I have practically covered all that is involved in the requests; that is, the subject has been covered, although I may not have given such propositions as counsel have requested.

There is one point perhaps I ought to mention to the jury that I have not spoken of thus far: If these premises were so injured, or if there was a destruction or injury to them to such an extent as that they were rendered untenantable and unfit for occupancy, the mere fact that the plaintiff offered to restore them and repair them would make no difference; they would still have the right to terminate the lease, if the injury went to the extent that I have indicated, if the destruction or injury went to the extent of rendering the premises unfit for occupancy so that the business could not be carried on there, so that the building was not longer suitable for mercantile purposes. The mere fact that the landlord offered to make repairs and restore them would not have the effect to prevent their acting upon their right to vacate, if such a condition of things existed.

Another thing was suggested upon the trial. Some inquiry was made of one of these defendants as to whether prior to this fire they were not undertaking or seeking to lease other premises, whether they were not making an effort to get out of those premises and into others and trying to relet these premises. I permitted some inquiries along that line, upon that subject, but simply as bearing upon the character and credibility of the witness of whom the inquiry was made.

Cuyahoga Common Pleas.

Under the terms of this lease it was the right of Weil, Joseph & Co. to sublet the premises if they wished, not that the subletting would release them at all from the payment of the rent under their own lease. Unless their landlord accepted a sub-tenant in their place, they would still be liable to pay rent. The question was asked simply as it bore upon the credibility of the witness, and it was for that purpose it was admitted. and for that purpose it is to be considered.

There being no controversy but that this lease was made for the period of time it was made, that the rent was for the amount stipulated and that it was paid up to the time of this fire, and that they occupied up to the time of this fire-the question being about the right to go out under the circumstances, that being set up by way of defense—the burden is upon the defendants to satisfy you that such a condition of things happened as that gave them the right to terminate the lease.

And the defendants at the time excepted the said charge as follows: 1. To that portion of the charge with reference to the extent of injury necessary to justify the defendants in abandoning the property and their being relieved from liability, and particularly to that part of the charge as to the injury being such that it was no longer a structure suitable for commercial purposes; that mere temporary inconvenience would not justify an abandonment, or a mere interruption of the use for a day or two, or that the situation must be such as to require a removal, or as to the extent of the injury being such as to make impossible or render impracticable the carrying on of the business.

2. To that portion of the charge on the subject of the apportionment of the rent between the portions known as Nos. 63 and 65 and the rooms over No. 67, and particularly as to the charge that if the rooms over No. 67 became unfit for occupancy and the other portion of the premises remained suitable for occupancy that the lease would not thereby be terminated, but that a proportionate part of the rent might be abated; and further as to the charge relating to the jury taking into consideration, upon the question of the amount of rent allowable upon abatement, the stipulation of the lease relating to the amount that should be allowed in case the defendants should not be able to get possession of the premises over No. 67.

And the said charge and the said special charge as hereinbefore stated, comprise all the charges of the court as given to the jury at said trial.

Whereupon the jury retired for deliberation, and returned a verdict for the plaintiff, as appears of record in the cause; and the defendants thereafter, within three days, filed a motion to set aside the said verdict and for a new trial, and the same was argued by counsel and submitted to the court, which, upon consideration, overruled the same and entered judgment upon said verdict, as also appears of record.

Mack v. Steinau.

EXECUTION ASSIGNMENTS FOR CREDITORS.

[Hamilton Common Pleas, 1893.]

ALFRED MACK, ASSIGNEE, V. JENNIE STEINAU ET AL.

1. RIGHT OF POSSESSION BY SHERIFF OF GOODS TAKEN ON EXECUTION, NOTWITHSTANDING SUBSEQUENT INSOLVENCY.

The sheriff is entitled to the possession of goods and chattels taken on execution previous to the debtor's assignment thereof for benefit of creditors, and to sell so much thereof as may be necessary to pay the amount due on the execution.

2. SAME, NOTWITHSTANDING AGREEMENT.

The fact that an agreement is offered to the sheriff by the assignee that in consideration of the delivery of such goods to him to be sold, the lien of the judgment shall attach to the proceeds as to the original goods, and the proceeds be applied on the execution, and that such goods are of greater value than the amount due on the execution, and can be sold to better advantage by the assignee, is not sufficient for enjoining the judgment creditor and sheriff from selling the goods.

Simrail & Mack, for plaintiff.

Follet & Kelley, for defendants.

WILSON, J.

When goods and chattels have been taken by the sheriff on execution, and afterwards the execution debtor assigns all his property, real and personal, for the benefit of creditors, the sheriff is entitled, notwithstanding said assignment, to retain the possession of the goods and chattels and to sell the same, or so much thereof as may be necessary, to pay the amount due on the execution; Wright, 259.

The fact that the assignee has offered to the sheriff an agreement, whereby the assignee agrees in consideration of the sheriff delivering to him the goods and chattels taken on execution and permitting the same. to be sold by him, that the proceeds of the sale shall take the place of the property, that the lien of the levy shall attach to the proceeds in the same manner and to the same extent as to the original goods and chattels, that the proceeds shall be applied to the payment of amount due on the execution, and the further fact that the goods and chattels taken on execution are of greater value than the amount due on the execution, and can be sold to a better advantage by the assignee than by the sheriff, is not a sufficient reason, the judgment creditor objecting, for enjoining the judgment creditor from further prosecuting his rights under said execution, or the sheriff from selling the goods and chattels, nor for the issuing of an order directing the sheriff to turn over the goods and chattels to the assignee. All the rights acquired by the judgment creditor by virtue of the levy are preserved to him, notwithstanding the assignment. 79 N. Y., 19; 70 Mo., 664; 66 Ind., 410.

Petition dismissed.