Machen v. Hooper

21 A. 67, 73 Md. 342, 1891 Md. LEXIS 15

Opinion

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 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 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 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, 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 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 the lessees is limited to their own conduct. But if these words are to be restricted to the things done outside of the premises, then the lessees are liable for any injury which might occur (with the exceptions named) although it might be without their agency, and beyond their power to prevent it. It is far more reasonable to infer that they contracted to make good any damage which they themselves should cause ; than that they agreed to incur an indefinite liability; which might arise from causes over which they could have no control. The other clauses in the lease are in harmony with this construction. One of these clauses bound them to restore the premises in the same order in which they received them “ordinary wear and tear excepted.” If the building fell in consequence of its defects, this loss-would be from ordinary wear and tear, according to the authority of Hess vs. Newcomer and Emmert, 7 Md., 325. It is difficult to understand the significance of the stipulation that the lessees are not to be responsible for ordinary wear and tear, if they are to be held liable in case it should tumble down because it was not sufficiently strong to stand. It would be a denial of the meaning of the words “wear and tear,” and would involve a contradiction in terms. To understand the meaning of this document, we must consider the whole of it as descriptive of one transaction, and we must ascertain its interpretation by considering the condition of things in which it had its origin. The examination which we have made of the lease satisfies us that the instructions given by the Court placed the case properly before the jury. The plaintiffs’ first prayer maintained that the defendants were responsible for any and all loss which should occur to the building, unless caused by fire; not even excepting injury arising from imperfect construction, or from the use of inferior materials, in the work, and even although the defendants might have observed the utmost care, prudence and circumspection in their use of the building. The third prayer asserted that the burden of proof was on the defendants to satisfy the jury that the alterations made in the building did not contribute to its fall. The alterations were made by authority granted in the lease. It is not to be assumed prima facie that they were improperly made. The matter was susceptible of proof; and the averment that they were improperly made ought to be proved by the party making the charge. The plaintiffs’ fifth prayer is in these words: “That there is no evidence that the building in question was let to be used for heavy storage purposes, or any other particular use, and if the jury find that the defendants entered and occupied the same under the lease in evidence, and made the alterations they desired as mentioned in the evidence, and afterwards used the building for the storage of heavy goods, it was incumbent on them to ascertain, as far as practicable, the limits of the capability of the building to bear the weights they, from time to time, proposed to put upon it, and for that purpose to obtain, if necessary, the aid of persons skilled in such matters.” The jury had a right to consider the purpose for which the warehouse was built, and for which it had been used, and also its apparent strength and storage capacity; and the business in which the defendants were engaged when they rented it; and to find whether, as men of ordinary, prudence and sagacity, they were justified in believing that it was strong enough to bear the weight of the goods which they stored in it. It is not in the ordinary course of business to require tenants to make the examination mentioned in this prayer. The defendants rented the warehouse for the prosecution of their business; they and their business were known to one of the plaintiffs, and it must have been known that they intended to use the warehouse for such proper purposes as their business required. The plaintiffs’ seventh prayer proceeds on the theory that if the building fell because of the weight of the goods stored in it, or of the manner in which they were stored, the defendants were liable. It does not leave to the jury the inquiry whether the weight of the goods was irnreasonable and excessive, or whether they were stored in a cautious, prudent and skilful manner. These inquiries were indispensable, unless the defendants are to be understood as contracting that they would abstain from a reasonable use of the building for the purposes to which it was apparently adapted. There must be some limitation to their liability for injuries caused by their own act. If a warehouse, to all appearance strong and stable, should in reality be so infirm as to fall down when the most ordinary operations of business are going on with care and prudence within its Avails, it would not be just to say that the fall was caused by the tenant’s conduct. Before we can convict the tenant of inflicting such an injury, we must find that he did something which he ought not to have done; that he subjected the building to an unreasonable strain, or that he was in some other way negligent, incautious or regardless of duty. If a building should fall because it was too weak to endure legitimate use, it could not with propriety be said that the injury was inflicted by a tenant who was prudently and carefully making such legitimate use of it. These four prayers which we have just mentioned were all properly rejected. The demurrers presented substantially the same questions as those decided in the prayers.

This case is very interesting, and it has been remarkably well argued on both sides. We have fully recognized the force of the arguments addressed to us by the learned counsel for the appellants, and the weight of the authorities on which they relied. We think, however, that the decisive character of several of the cases which they cited has been greatly diminished by a change which has been silently and steadily taking place in the mode of construing contracts.' In Kingston vs. Preston, 2 Doug., 689, Lord Mansfield made a vigorous protest against the artificial and mechanical rules of construction which prevailed at that time, and earnestly insisted that the “evident sense and 'meaning of the parties” was the true object of inquiry by the Court, without regard to the order or arrangement of the covenants. Many distinguished jurists since his Lordship’s time have given their efforts to the establishment of this rational principle. A summary of the doctrine as generally adopted may be found in Platt on Covenants, (3 Law Library, 136:) “ The first general principle is that covenants shall be so expounded as to carry into effect the intention of the parties. This intention is not to be collected from the language of a single clause in the deed, but from the entire context; and it is immaterial in what part of a deed any particular covenant may he inserted, for exposition must be upon the whole instrument, ex anteeedentibus et consequentibus, and according to the reasonable sense and construction of the words; as is said by Plowden: ‘ Tbe scope and end of every matter is principally to be considered; and if the scope and end of the matter be satisfied, then is the matter itself, and the intent thereof, also accomplished. ’ Reniger vs. Fogossa, 1 Plow., 18. So observes Lord Hobart: ‘The law, being to judge of an act, deed, or bargain, consisting of divers parts, containing the will and intent of the parties, all tending to one end, doth judge of the whole, and gives every part his office to make up that intent, and doth not break the words in pieces.' Earl of Clanrickard’s Case, Hobart, 275, 277. This principle of construction is also agreeable to a rule in the civil law, viz., if the words of a covenant appear to be contrary to the intention of the covenantors, which is otherwise evident, such intention must be followed rather than the words. Accordingly in many cases, the most general words in a deed have been holden to be narrowed and restrained by the apparent object and intent of the parties, as collected from other parts of the same deed. Thus in Broughton vs. Conway, Moore, 58, in debt on obligation, with this condition, (after reciting that the defendant had sold to the plaintiff a lease for years of the manor of S.,) that he would not do, nor had done, any act to disturb the plaintiff’s jiossession of it, but that the plaintiff should hold and enjoy this peaceably without the disturbance of the defendant or any other person; it was holden by all the Justices that the defendant was not bound to warrant peaceable possession to the vendee, but only against acts done or to be done, by himself; and that all the sequel of the condition which came after the word but should be referred to the antecedent part of the condition, and expounded and extended in like manner; that is to say, that he should enjoy it without disturbance of any person or persons, by any act by him done, or to be done.” Certainly this rule of constniction prevails in this State to the fullest extent. In very many cases it has been tacitly applied as a matter of course, without formal enunciation. Our decisions have been in full accord with the rule stated by the Supreme Court of the United States in Nash vs. Towne, 5 Wallace, 699. It may answer a good purpose if we quote it. “Courts, in the construction of contracts, look to the language employed, the subject-matter, and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and, in that view, they are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them,' and so to judge of the meaning of the words and of the correct application of the language to the things described. ”

(Decided 16th January, 1891.)

There is no error, and the judgment will be affirmed.

Judgment affirmed.