Wade v. Pittsburg Machine Tool Co. , 40 Pa. Super. 365 ( 1909 )

Opinion by

Orlady, J.,

The plaintiff leased to the defendant company a factory for a term of five years. The lease contained the following provision: “The tenant will make all necessary repairs at his own proper costs and charges, without abatement of said rent, and at the expiration of the term aforesaid shall and will yield up the said premises in as good and sufficient repair as when received (reasonable wear and tear and accident by fire and other causes excepted) without any further notice from the said parties of the first part.”

During the term of the lease the superintendent of the bureau of highways, etc., of the city, notified the plaintiff and the defendant that the rain conductors on the building were rotten from the top to the bottom, and that they must be repaired at once and have a proper sewer connection. The plaintiff then notified the defendant to make the repairs, which the defendant refused to do, and thereupon the plaintiff repaired the waterspouts and conductors and roof at an expense of $142, and this action was brought to recover the said sum from the tenant under the clause of the lease above quoted.

The testimony in regard to necessity for the repairs was conflicting. Witnesses for the plaintiff testified that these defects were such as should be made promptly. Defendant’s witnesses testified that they were not. The question resolved itself into a mixed one of law and fact, and as such it was properly submitted to the jury. The first and third points of the plaintiff as submitted implied that the verdict should be directed in favor of the plaintiff. The responsibility of the tenant to the landlord does not depend solely on the notice received from the department of public works. The public official may or may not be right, but the liability of the tenant depends upon the conditions existing at the time the property was leased, and the conditions as they exist at the expiration of the lease, many of which may not be necessarily known by the representative of the city.

The third assignment of error is to the following: “We say to you, as a matter of law, that it was the duty of the defendant to make certain repairs to the house, that is, he was obliged to make necessary repairs, and by necessary repairs we do not mean only such repairs as would keep the building in a tenant-able condition for the use of this defendant, but it means more than that; it means such repairs as may be necessary to protect the house from waste and ruin. A man might permit the gutters and spouting of a house to get out of repair and allow water to run down upon the outside of the house without inconvenience to himself, but by so doing the house may be considerably injured. It is repairs of that kind, that the tenant must make in a clause of this kind.” And in the fourth assignment, “The questions of fact here it seems to me are for the jury. That is, whether a repair is necessary, is, under the circumstances, a question for the jury to determine; all questions of law are determined by the court, but the questions of fact are solely for the jury, and this is a question of fact, and you must determine that question of fact from the testimony of the witnesses whether these repairs were reasonably necessary for the protection of the house, for the protection of the property; and if they were, then, as a matter of law, the defendant was liable for them and he ought to have made them, and if he did not make them, then the plaintiff had the right to have them made and to charge the costs to the tenant.” Which was a fair and proper submission of the case. The assignments of error are overruled. The judgment is affirmed.