Northwest Auto Co. v. Mulligan Lincoln-Mercury, Inc.

83 N.W.2d 306, 348 Mich. 279

• Court: Michigan Supreme Court
• Decided: May 17, 1957
• Docket: Docket 24, Calendar 47,165
• Status: Published

Opinion

Black, J.

(after stating the facts). The case was tried to the court, without a jury. Defendant’s ■counsel correctly characterized it, in his opening statement to the trial court, as presenting questions of fact only. He went on to say that “basically, I think the whole thing is a question of what condition the building was in at the time possession was given up.” So, and in array with the circuit judge’s decision upon the facts, we are confronted again with claim that the jugment below is contrary to the clear preponderance of the evidence. In these circumstances we refer to what was said of our appellate function in Barnes v. Beck, 348 Mich 286, and proceed from that point to analyze this record of facts.

Plaintiff made a prima facie case by proving the lease; the condition of the demised building and the equipment-fixtures thereof at commencement of term; the corresponding conditions at end of term; “as good or better” conditions obtaining at end of term; * the fact of deposit, and the fact of retention of the net balance thereof by defendant. Defendant thereupon undertook proof of damages according to affirmative allegations of its pleadings. Such damages are detailed as follows in its brief:

“Repairs to air conditioning unit..... $855.34

Repairs and replacement to electrical

system ......................... 1,140.00

Interior painting .................. 2,260.00

Hoists and replacement of broken

steam and air lines .............. 2,325.39

Necessary repairs to overhead door . . 371.00

Replacement of explosion-proof lights

and fluorescent lights ............ 170.00

Labor in painting and replacing glass

in outer walls .................. 1,340.00

Additional month’s rent at old location .................. 1,000.00”

Defendant’s proof, supporting its claim for such damages, seems quite persuasive so far as this printed record can or does disclose. Had this Court been constituted and authorized to try law cases anew on pleadings and transcripts, we might agree with defendant that its said proof appears more convincing than that received in opposition. But such is not our province. We must continue to point out to the profession what is now a commonplace — that the function of deciding credibility and finding facts is committed to our courts of original jurisdiction; that we cannot reverse or remand simply because the facts found below are forcefully opposed by others shown in the record, and that we do not reverse or remand on bid of a “clear preponderance” assignment in the absence of convincing circumstances disclosing that crucial proof has been overlooked or ignored. No more need be said in view of recent treatment of this apparently troublesome rule of practice (Schneider v. Pomerville, 348 Mich 49; and Barnes v. Beck, supra).

In the case before us, and by carefully considered opinion, the trial judge analyzed the proofs and found:

“From the testimony adduced at trial, it was conclusively shown that the building was in a tenantable condition when acquired by leasehold from Gulley & Russell in the year 1950. The court is satisfied from the testimony adduced by the witnesses for the plaintiff and cross defendant and the testimony on cross-examination from one or more of defendant and cross plaintiff’s witnesses, that likewise the building was tenantable for the purpose for which it was being used at tbe termination of the leasehold interest, February 1,1955, and was surrendered in like condition as taken, reasonable wear and tear thereof excepted. It is the further opinion of the court that the equipment was surrendered, up in like condition, wear and tear excepted.

“The court finds further that the alterations made to the building by plaintiff and cross defendant, claimed by defendant and cross plaintiff to have been accomplished contrary to the terms of the lease, were actually done by plaintiff and cross defendant prior to the time defendant and cross plaintiff acquired any interest in the property. Testimony to the effect that the former lessors acquiesced in said alterations was uncontradieted.

“The court is not unmindful of the fact that defendant and cross plaintiff spent substantial sums of money in order to place the building in a condition suitable for its use, but notwithstanding such sums, is of the opinion that the former occupant likewise spent substantial sums over a 5-year tenancy in maintaining- and repairing the building and its contents in accordance with its requirements and in accordance with the meaning of the language contained in the lease.”

These findings are testimonially supported, particularly by plaintiff’s showing of substantial expenditures — during the term of the lease- — for painting of the building and keeping the equipment-fixtures thereof as mentioned in the lease in serviceable operating condition. Such proof impels observation that defendant was not entitled to surrender of the premises in newly-decorated condition, or, on surrender, to complete rebuilding of service equipment normally subjected to continuous heavy duty. It was entitled simply to performance by plaintiff of lease covenants involving conditions existent when tenancy commenced as well as when it ended, and interim depreciation known as “reasonable wear and tear.”

One question remains. Defendant asserts that “the burden of showing the cause of damage was not upon the lessor but was upon the lessee,” and says that the trial judge failed to hold plaintiff to such burden. The question is academic, since the record shows testimony of substance on which the trial judge might properly have found the essential facts either as claimed by plaintiff or as claimed by defendant.

Affirmed. Costs to plaintiff.

Smith, Edwards, Voelker, and Carr, JJ., concurred with Black, J. Dethmers, C. J., and Sharpe and Kelly, JJ., concurred in the result.

* This testimony was given by plaintiff’s witness Leo J. Klein. Klem testified that he had been engaged for some years as broker in the business of selling automobile agencies; that he acted as broker in selling (in 1950), for Gulley & Russell to plaintiff, the Dodge-Plymouth agency “known as Northwest Auto Go.;” that he was familiar with the condition of the demised building and its equipment-fixtures as same stood when the lease was executed; that he knew corresponding conditions at lease-termination, at which time he “re-examined the prem ises, known now as Mulligan Lineoln-Mereury,” and “from tlie standpoint of a dealer operating that business, that the facilities as a whole were in better condition” at end of such term than at the time he arranged for transfer of the agency from Gulley & Bussell to plaint tiff. Klem was subjected to a vigorous and skillful cross-examination, and it is claimed by defendant that his testimony was and is outweighed by its proof of conditions at lease-termination.