Weichers v. Dehail

BRITTAIN, J.

The plaintiff appeals from a judgment in his favor for damages in the sum of one dollar in a suit in which trial by jury was waived, upon a cause of action of the lessee of a portion of a building in San Francisco, for hotel purposes, for breach of an express covenant of the lease and of claimed implied covenants. The record is voluminous, and since the judgment must be sustained, no purpose will be served by an extended recital of facts. It is enough to say that since the lease was for hotel purposes, the appellant claims there was an implied covenant

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that the heating and hot-water plants should be adequate for the use to which the building was to be devoted. It is claimed the evidence shows that neither the heating nor hot-water plant was adequate, and because there was no direct and express finding upon the issue of adequacy that the judgment must be reversed.

On behalf of the respondent it is contended the rule of implied covenants does not go to the extent claimed ¡ by the appellant, and that the evidence upon the question qf adequacy was conflicting; further, that a finding to the effect that the heating plant was installed and ready for use when the lessee entered into possession sufficiently met the issue of adequacy.

After the lease was executed, the landlord leased a portion of the ground floor of the building to other tenants who installed an auto truck repair-shop. There was evidence to the effect that the operation of the repair-shop, by reason of vibration and noise as well as by the filtration of smoke and noisome gases into the hotel, constituted such an injury to the leasehold as to amount to a constructive eviction under the implied covenant for quiet possession. The finding of the court and the conclusions of law support the position of the appellant in regard to this matter.

There was an express covenant in the lease, the substance of which was that if the hot-water tank of the buildT ing should be found to be inadequate, the landlord would install a second hot-water tank. Plaintiff demanded the installation of such a tank. At the time of trial it had not been installed. The court found that the* defendant had offered to install the tank and that his offer had not béen accepted. On behalf of the appellant it is argued that under the covenant when demand was made for the installation of the tank, the duty of the landlord to make the installation was fixed and that he should be held liable for damages by reason of his failure.