Zagame v. Chalmette Laundry Co.

1 Pelt. 20

• Court: Louisiana Court of Appeal
• Decided: July 1, 1918
• Docket: No. 7242
• Status: Published

Opinion

Oil wx Q S*

^0,This is a suit ”b¿r a landlord $gainst\his tenant for damages for the alleged destruction by the latter of a certain stable and the concrete floor ^eof on the leased premises and which the tenant refused to replace or restore* The suit was -instituted on December 27, 1916, that is, during the term of the lease which was not to expire until October 31, 1917;‘and upon this incident a plea of prematurity was sustained by the Court and the suit dismissed* The appeal is from that Judgment*

The exception was submitted upon the allegations of the petition and the contract of lease which is made part thereof. From these it is olear that the aot complained of by the landlord is violative of a covenant of the lease itself which prescribes that the "lessee is obligated to make no alterations to said premises." And the lease being thus violated, it is equally clear that an immediate right of action accrues in favor .of the landlord for all damages sustained from the aot of his tenant.

I?or is hi* right to maintain the action postponed by the effect of the further provision in the lease requiring the lessee to return the premises and its ii.-iprove.oenta in good order at the termination of the lease. That clause refers to changas or improvements that the tenant has a right to make un.T-r the terms of the lease and not to those acts wbioh are violative of its express prohibit Lons.

V’.jon the case as presented, that is, solely upon the petition and the lease and without any evidence being adduced that might perhaps show that the acts complained of were necessary for the proper enjoyment of the premises for the- use contemplated by the vjarties, we hold that the alleged destruction of the improvements constituted a broach of the covenant as to alterations upon which the plaintiff may maintain an action without awaiting the termination of the lease.

The judgment is accordingly reversed, the exception of prematurity is overruled and the cause remanded for further proceedings according to lav;, oCfc* defe-idant to pay the costs of appeal and alíanoste to await the final determinaxion of the cause.

Reversed and Femanded.