Chesapeake Brewing Co. v. Goldberg

Worthington, J., delivered the opinion of the Court. The only question presented for this Court’s determination by the appeal in this case is whether the words “now' are” contained in a covenant on the part of the lessee of certain premises, to surrender the same at the end of the term in the same condition as they “now are” refer to the condition of the premises at the time of making the lease or to their condition at the commencement of the term. ⁴⁸⁶ The lease in question purports to demise to the Chesapeake Brewing Company, (the appellant) the premises known as No. 1401 East Pratt street in" Baltimore City, for the term of two years, beginning on the 1st day of May, 1904, and ending on the 30th day of April, 1906, at the yearly rental of six hundred dollars, payable in advance in equal monthly installments of fifty dollars each. The language of the covenant out of which this action grew is as follows: “And the said lessee hereby covenants and agrees with the said lessor, * * * that he will keep said premises in repair, and surrender the same at the end of the term hereby created, or any renewal thereof, in the same condition as they now are, losses by fire and acts of God excepted. It was further covenanted, “that said demised premises are now in good repair” and that the words “lessor and lessee, should be construed to include their heirs, personal representatives and assigns.” On June 14th, 1905, the original lessor sold the demised premises to Solomon Goldberg, the appellee, and duly assigned to him in writing under seal, all his rights and interests under' said, lease.

The assignee (appellee) brought this action against the lessee, (appellant here) alleging that it did not surrender said premises in the same condition they were at the time of the rental, but did surrender them in a dilapidated and extremely bad condition, and claiming damages for the injury thereto in the sum of twelve hundred dollars. The case was tried in the Court of Common Pleas of Baltimore City, without the aid of a jury, and the plaintiff obtained a verdict and-judgment for $490. There are two exceptions in the record, one to the exclusion by the Court of certain evidence, and the other to the granting of plaintiff’s prayer and the refusal to grant certain prayers offered on the part of the defendant, both exceptions being intended to raise the question suggested above, to wit: Whether by the terms of the covenant to keep in repair, the premises were to be surrendered at the end of the term in the condition they were at the making of the lease, or in the condition they were at the commencement of the term? ⁴⁸⁷ By its ruling the lower Court construed the words “now are” in the covenant to refer to the beginning of the lessee’s term and damages were allowed on a comparison of the condition of the premises at that time with their condition, upon being surrendered, at the end of the term. The appellant cites the case of Stultz v. Locke, 47 Md. 564 , in support of its contention that the words “now are” as contained in the covenant, refer to the time when the lease was executed, and insists that the measure of the plaintiff’s damages is ascertained by a comparison of the condition of the premises at that time with their condition at the end of the term.

The significance of the appellant’s contention is found in the fact, as will hereafter appear, that the premises were not in as good condition at the time of the making of the lease as they were when the lessee’s term began, and therefore if the plaintiff is entitled to recover at all, a smaller amount of damages would be recoverable if its contention be sustained. In the above cited case of Stultz v. Locke the Court says: “It was decided in Middlekauff v. Smith, 1 Md. 329 -340, that a covenant in a lease ‘to repair’ generally, or ‘to keep the premises in repair,’ imposes on the covenantor the legal obligation to keep the premises in as good repair as when 'the agreement was made” * * * “or in other words, that a covenant to keep in repair, and a covenant to keep in as good repair as they now are, are identically the same covenant.” In both these cases the covenant was one to be kept and performed on the part of ther lessor, and the same is true of the case of Guttridge v. Maynard, 7 C. & P. 129, therein referred to. In the case of White v. Nicholson, 4 Mann. & Gr. 95 (43 E. C. L. R. 58) the Court held that a covenant on the part of the lessee “to leave the premises in the same state as they ‘now are,'" bound him to restore them to the landlord in the same condition they were at the commencement of the lessee's term. The four judges who sat in the last mentioned case were ⁴⁸⁸ Tindal, C. J. and Coltman, Erskine and Creswell, JJ., and while some professed at first a dbubt, they all united in the judgment, each filing a separate opinion, holding that'the words “now are” referred to the commencement of the term and not to the date of the lease.

Without determining if there is any good ground or principle for this distinction