Lippert v. Kirby
Lippert v. Kirby
Opinion of the Court
On the 1st day of June, 1925, the defendants Sol. H. Ettenheim & Sons leased to the defendants Oak
It is conceded that the lessors were under no obligation to make such repairs unless it arose from their covenant in the lease which obligated them to furnish heat for said building. Although' a jury in the civil court found to the contrary, it unquestionably appears from the evidence that the lessors did deliver to the heating plant in the leased premises, from a steam boiler in an adjoining apartment, sufficient steam to heat the premises had the heating plant in the demised premises been efficient and in a proper state of repair.
It is the contention of the Ettenheims that they fully satisfied the obligation which they assumed by the covenant in question when they so delivered a sufficient quantity of steam to heat the house if the heating plant were in a proper state of repair. ■ The Ettenheims do not deny that some parts of the demised dwelling, during two winters, were not as warm as the Kirbys would like to have had them. It appears conclusively that the reason for this situation was a lack of
The covenant is not one by which the lessors specifically agree to heat the building. If the covenant were to heat the building, it would seem plain that the duty devolved upon the lessors to keep the heating plant in a state of repair and efficiency, and to do all other things necessary to heat the building. They, however, say that they did not agree to heat the building; that what they agreed to do was to furnish heat for the building, which obligation they fulfilled by delivering a sufficient quantity of steam into the pipes of the heating plant. To this the lessees counter by saying that steam is not heat, any more than coal delivered in the basement is heat; that the lessors covenanted to furnish heat, not merely steam for heat, and that their covenant required them to deliver heat in the various rooms of the house where it could be' made efficient.
It seems plain to us that the latter is the undertaking which the lessors assumed by the covenant. We can discover no difference between the covenant to furnish heat for the building and a covenant to heat the building, and the delivery of steam in the basement does not discharge the lessors’ obligation to furnish heat for the building. Their obligation plainly was to furnish heat where necessary in the various rooms of said building. By this covenant they assumed the obligation, by necessary implication, to make all repairs and to do all things necessary to enable them to carry out their express covenant to furnish heat for the building.
By the Court. — So ordered.
Reference
- Full Case Name
- Lippert v. Kirby and another, and Ettenheim and another, interpleaded and
- Cited By
- 1 case
- Status
- Published