Machen v. Hooper

Bryan, J., delivered the opinion of the Court. The questions in this case were presented to the Court below with a considerable variety of form. They all depend, however, upon the proper construction of the agreements contained in a certain lease, which appears at large in the record. On the sixth day of June, eighteen hundred and seventy-nine, the plaintiffs below (now appellants) leased to the defendants a lot of ground in the City of Baltimore “together with the building or warehouse thereon;” said lot and building being known as number 37 South Gay street.

The lease was for the term of five years, accounting from the fifteenth day of May, eighteen hundred and eighty. Shortly after the execution of the lease, the lessees obtained an assignment from a tenant in possession and entered upon the premises. On the thirtieth day of May, eighteen hundred and eighty-four, the building suddenly fell down and became a mass of ruins. It was contended at the trial below that by force of the agreements contained in the lease, the defendants were responsible for the damage caused by the disaster; while the contrary was maintained by the defendants.

Before we examine the terms of the lease, we will state some of the evidence adduced by the respective parties. The evidence offered on the ³⁶⁵ part of the plaintiffs tended to show that the building was five stories high; that it was erected in 1854, by a skillful and experienced builder for the firm of Charles D. De Eord and Co.; that it was constructed of the best materials and was a structure of the strongest kind; that the firm were largely engaged in manufacturing-tobacco and that they stored a large quantity of tobacco in it, and required a very strongly built house for their business; and that its fall was caused by storing in it a large quantity of cotton goods of excessive weight. The evidence offered in behalf of the defendants tended to show that the defendants were manufacturers of cotton duck, cotton twine and cotton rope; that they were ‘well known to one of the plaintiffs; that the warehouse was badly constructed; that it was built of inferior materials and was weak; that the defects in the building could not have been discovered without a thorough examination by an architect or other expert conversant with such matters; that if the walls had been of proper thickness and the materials had been sound and good and of proper strength, four million six hundred and three thousand five hundred pounds might have been stored in it with safety; that on the day when it fell the goods stored in it and in an adjoining warehouse weighed one million eight hundred and seventy-eight thousand eight hundred and sixty-five pounds, including what was in the cellars, and that they were properly stored; and that the cause of the fall of the building was its weakness. It will be seen that there was a very great conflict in the evidence.

Of course the Court could not determine the truth of the testimony; but could only give the jury instructions on the law adapted to such conclusions as they might draw in respect to the credibility- of the evidence. They were instructed according to the second prayer of the plaintiffs, that if the fall of the building was attributed to alterations made ³⁶⁶ in the building by the defendants in connection with the use thereafter made of' it by them, the plaintiffs were entitled to recover. And according to their fourth prayer, that if the fall was owing to the excessive quantity of goods stored in the building by the defendants, or to the manner in which they were stored, the plaintiffs were entitled to recover. And in their sixth prayer that the burden of proof was upon the defendants to show that the building fell in consequence of ordinary wear and tear, and that unless they did show that the fall of the building was so,caused, the verdict should be •for the plaintiffs.

The jury were also instructed on the prayer of the defendants, that if they used the building as persons of ordinary care and prudence would have done, looking to its character, size, apparent construction and strength, and that it fell down in consequence of some defect in its structure, or on account of a want of proper thickness of the wall, or on account of the ordinary decay of the materials, and that all these matters were unknown to the defendants, and could not have been discovered by reasonable and ordinary diligence, the verdict should be for the defendants. Other instructions were prayed by the plaintiffs, which we shall consider in another part of this opinion. But we shall first examine the lease and see how far these instructions were justified by its provisions. The lease is very long, and is drawn with much minuteness and particularity.

The agreements contained in it are called covenants; but as the instrument is not under seal, this description is not technically accurate. It was probably adopted under the supposition that it was to be sealed by the contracting parties. This phraseology, however, will not in any way affect the construction of the paper. After stating the lease of the lot with the building or warehouse thereon, many so-called covenants follow.

There .is a provision for a suspension of the ³⁶⁷ rent in case of destruction by fire, or by tbe act of God; or by anything done or occurring without the fault of the lessees; and for a rebuilding at the expense of the lessors under certain circumstances not now necessary to be particularly noticed. There was an agreement that the lessees might at their own expense make alterations in the building which should not affect its safety or strength and durability. The lessees covenanted in these words “that they would be liable and answerable for any and all damage or injury other than loss or damage by fire not suffered by breach of any covenant herein contained on the part of the parties of third part (the lessees,) to be performed, which, during their occupation thereof, shall occur to the said building or any part thereof, by or by reason of any act or thing done or occurring within said premises or building,, and also for any act or thing done or occurring outside thereof by the said parties of the third part, their servants, employes or tenants, or otherwise by their authority or consent, but shall not be responsible for damage by fire, unless not covered or protected by insurance, by failure on their part to comply with some of the stipulations or covenants of these presents nor by act of God, or act or acts of third persons done or committed outside of the said demised premises without the participation, authority or consent of the lessees." And in a subsequent part of the lease they covenanted that at the end of the term they would quietly surrender to the lessors “the said demised premises and building in the same good order and condition they now are in, ordinary wear and tear, loss by fire, (other than as hereinabove specially provided against,) act of God, and damage caused by external accident or acts of third parties, as hereinbefore particularly mentioned, together with the addition and improvements by the said parties of the third part thereto, or therein added or made, in good order as aforesaid, ³⁶⁸ unless such addition shall have been required by the lessors or their assigns to he removed under the succeeding covenant. ” And the lessees further covenanted that if required by the lessors they would restore the building to the same state and condition in which it then was, ordinary wear and tear excepted. A view of the circumstances connected with the making of this lease will materially assist us in ascertaining the meaning of the contracting parties.

The lessors owned a warehouse which they desired to rent; it was large and commodious and vas believed to he of uncommon strength. 'The lessors certainly s,o believed and it would he a very irrational inference from any evidence in the cause to infer that the lessees did not believe the same thing. .The lessees desired for the prosecution of their business, just such a warehouse as this one was supposed to be. They required one of great strength and great storage capacity. Thé lessors wished good tenants who would pay the rent promptly, and would take good care of the building; who would not inflict any injury upon it, and who in using it for the purposes of their business, would exercise the care and prudence which reasonable and just persons ought to exercise. It was natural that the lessees should accede to these expectations.

But it was not in the contemplation of either of the parties that the building would fall from its inherent weakness, or from its defective construction. If the lessees had believed that such a result was .probable, every instinct of reason and common prudence would have prevented them from leasing it. And it would have been very far from the ordinary course of business pursued by all men, whether wise or foolish, to enter into a contract to rebuild it, in case it should fall without any default, negligence or want of care on their part. Yet still it was in their power to enter into any contract, which they saw fit to make; and if they have agreed to become responsible for a disaster aris ³⁶⁹ ing from defects in the building, they must abide the consequences.

In determining, however, what was meant by their contract, we must take within the compass of our view the circumstances which we have mentioned. They have agreed in the words of the lease to be answerable for all damage or injury (with certain exceptions,) which should “occur to the building by reason of any act or thing done or occurring within said premises or building, and also for any act or thing done or occurring outside thereof ’ ’ by themselves or their servants or their tenants. If.the words “'by themselves or their servants or their tenants ” are to he applied to the things done within the premises or building, as well as those done outside of them, the liability of