McKinney v. White Sewing Machine Corp.

200 N.E.2d 596, 95 Ohio Law. Abs. 368, 32 Ohio Op. 2d 306, 1964 Ohio App. LEXIS 614
CourtOhio Court of Appeals
DecidedJuly 30, 1964
DocketNo. 26758
StatusPublished
Cited by17 cases

This text of 200 N.E.2d 596 (McKinney v. White Sewing Machine Corp.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKinney v. White Sewing Machine Corp., 200 N.E.2d 596, 95 Ohio Law. Abs. 368, 32 Ohio Op. 2d 306, 1964 Ohio App. LEXIS 614 (Ohio Ct. App. 1964).

Opinion

Silbebt, J.

This appeal comes to this court on questions of law from a judgment entered in the Court of Common Pleas of Cuyahoga County on special verdicts rendered in favor of plaintiffs-appellees, E. W. McKinney, Ida McKinney and F. C. McKinney, who shall hereinafter be referred to as plaintiffs. Defendant-appellant, White Sewing Machine Corporation, shall be hereinafter referred to as defendant.

In 1948 plaintiffs leased an industrial parcel located in Cleveland, Ohio, to the Apex Electrical Manufacturing Company for a five-year term along with an option for an additional five-year term which was subsequently invoked so that the term extended from June 15, 1948, until June 15, 1958. At the time of the execution of the lease, Apex paid to plaintiffs the sum of $24,750,000, reflecting the yearly rental of the property, which was to be used as security for the performance of the covenants of the lease. Under the terms of the lease the balance remaining at the end of the fourth year of the second term was to be applied to the payment of rental installments during the fifth and last year of this term. In 1955 Apex subleased the parcel to Hope Metal Products, Inc., until June 14, 1958. In 1956 Apex was merged with the defendant who became successor to the interests of Apex under the lease. On the 19th of August, 1958, Hope Metal Products, Inc., while still in possession of the premises, filed a petition for reorganization under Chapter XI of the United States Bankruptcy Act in the United States District Court for the Northern District of Ohio, Eastern Division. On this date officers of the Bankrupcty Court obtained control of the premises and retained possession until November 24, 1958, at which time possession was given to defendant who in turn relinquished same to plaintiffs.

In the second amended petition plaintiffs set up five causes of action. In the first cause of action it is alleged that defendant had not paid the annual rental of $24,750.00 for the last [371]*371year of the lease. In their second canse of action plaintiffs alleged that defendant failed and refused to deliver up and surrender the premises on J une 15,1958, and that they were unable to obtain possession of the same until November 24, 1958; that they did not receive any payment for the use of the premises during this period, which amounted to $13,249.97 predicated on a monthly rental of $2500.00. In their third cause of action plaintiffs alleged that the defendant did not pay water and sewer bills in the amount of $338.76 for the period from June 15, 1958, until November 24, 1958. In their fourth cause of action plaintiffs alleged that defendant failed to deliver the premises in as good condition and repair as the same were at the commencement of the term, “loss by fire, windstorm * * * and ordinary wear and tear excepted; ’ ’ that defendant failed to restore alterations, failed to maintain public liability insurance and failed to return certain equipment in operating condition, failed to maintain the A. D. T. system, failed and refused to allow no waste and no unnecessary damage and to keep the premises in good repair. To all of which plaintiffs claim they were damaged in the sum of $26,539.28. In their fifth cause of action plaintiffs claim the sum of $16,931.23 for loss of use of the premises and utility expenses during the period required to make repairs.

Plaintiffs pray for judgment on these five causes of action and interest from various dates preceding the commencement of the suit.

In its answer to the second amended petition defendant admitted certain facts in regard to the lease, its terms and conditions, defendant’s corporate existence, and other matters, but generally denied the claims alleged and set up certain affirmative defenses arising out of its sublease to Hope Metal Products, Inc. In their reply plaintiffs acknowledged the sublease to Hope Metal Products, Inc., and generally denied defendant’s affirmative defenses.

At the conclusion of the trial of the cause, the court submitted eight special verdicts to the jury relating to the second, third, fourth and fifth causes of action while reserving a ruling on the first cause of action as a matter of law.

The jury found for plaintiffs in the amount of $10,825.00 on the second cause of action which reflects the value of the [372]*372rental of tbe premises for the period of June 15, 1958, to November 24, 1958. On the third cause of action the jury found for plaintiffs in the sum of $338.76 for the water and sewer bills incurred from the period of June 15,1958 to November 24,1958. On the fourth cause of action, which involved the breach of various covenants in the lease, the jury found for plaintiffs in the sum of $22,153.95. On the fifth cause of action, which was for the loss of use during the period of repair, the jury found for plaintiffs in the sum of $6,187.50.

The court then entered judgment for defendant on the first cause of action as a matter of law and entered judgment for plaintiffs on the remaining causes of action in the amounts as above set out, to which interest was added by the court from the various dates preceding the commencement of this suit. This brought the judgment to $50,546.67, $39,505.21 of which was damages, $11,041.46 being interest awarded by the court. The computation of same is set forth in the findings of fact and conclusions of law that were requested by defendant.

From the judgments so entered and from the overruling of motions for judgment notwithstanding the verdict and new trial, defendant appealed to this court.

The errors assigned by defendant are as follows:

1. The court erred in submitting to the jury, before argument, certain written requests to charge submitted by the adverse party.

2. The court erred in imposing pre-judgment interest on the jury awards.

3. The court erred in the use and submission of special verdict forms.

4. The court erred in overruling appellant’s motion for judgment notwithstanding the verdicts on Special Verdict Issues Nos. 4, 6, and 8.

5. The court erred in its general charge to the jury.

6. The court erred in admitting evidence offered by the adverse party over the objection of appellant.

7. The court erred in overruling appellant’s motion for a new trial.

8. The special verdicts and judgment are contrary to law and against the weight of the evidence.

[373]*373As to Assignment of Error No. 1, the special charges in question that were submitted to the jury were as follows:

“No. 9:

‘ ‘ I charge you as a matter of law that under this lease the lessee was required, during the term, to use and occupy the premises in a careful, safe and proper manner, to keep the premises in good repair, and not to commit any waste or any unnecessary damage upon or to the premises.”

“No. 11:

“You are further instructed that the exception for ‘ordinary wear and tear’ does not excuse the defendant from exercising reasonable care in maintaining and protecting the premises during the term of the lease, does not excuse the defendant from any failure to keep the premises in good repair during the term and does not excuse the defendant from responsibility for waste or unnecessary damage to the premises during the term.”

The portions of the lease that bear on this discussion state:

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Bluebook (online)
200 N.E.2d 596, 95 Ohio Law. Abs. 368, 32 Ohio Op. 2d 306, 1964 Ohio App. LEXIS 614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckinney-v-white-sewing-machine-corp-ohioctapp-1964.