Opinion
41340.
DECIDED OCTOBER 5, 1965. REHEARING DENIED OCTOBER 22, 1965.
Action on lease contract. Fulton Civil Court. Before Judge Webb.
John E. Dougherty, for plaintiffs in error.
Westmoreland, Hall Pentecost, Harry P. Hall, Jr., contra.
1. (a) In order to establish a breach of covenant by a lessee to surrender the demised premises at the termination of the lease in as good condition as when received, it is essential that the plaintiff lessor prove with reasonable certainty and specificity the condition of the premises, or the portions of them in question, both at the inception and at the termination of the tenancy, or that he show specific acts of waste or damage the results of which at the end of the term had not been repaired.
(b) The measure of damages is the reasonable cost of restoring the demised premises to the condition contemplated by the covenant.
(c) The plaintiff lessor must establish the reasonable cost of restoration in relation to the specific injuries proved.
(d) The verdict in this case was not warranted by the evidence.
DECIDED OCTOBER 5, 1965 — REHEARING DENIED OCTOBER 22, 1965.
Borochoff Properties, Inc. sued out an attachment against Al Fedell and Spacemaker, Inc. After execution of the attachment, defendants replevied the property levied upon by giving bond. Plaintiff then filed its declaration in attachment, which as subsequently amended stated the following allegations:
"That the defendants leased from the plaintiff premises known as 3707 Ponce de Leon Avenue, Scottdale, Georgia, and upon the termination of the lease on or about May, 1963, defendants removed certain fixtures belonging to the plaintiff and disposed of the same, which consisted of eleven (11) exhaust fans, three (3) skylights, four (4) floor grates, eighty-seven (87) squares of corrugated metal roof, two (2) wall mirrors, all as shown on Exhibit `A' attached hereto and made a part hereof . . .
"That in addition to removing said fixtures, defendants caused extensive damage to be inflicted upon the premises, housing a building and warehouse on said premises, consisting of floors, walls and ceilings and electrical wiring, all as shown on Exhibit `A' attached hereto and made a part hereof . . .
"That in addition thereto, defendants left without paying the DeKalb County water bill in the amount of $602.21; the defendants caused glass panes to be broken on the premises requiring plaintiff to repair the same at a cost of $80.22; and defendants caused the building to be left in such a state of filth and shambles that plaintiff incurred cleaning expenses for labor in the sum of $2,359.71, as shown by Exhibit `B' attached hereto and made a part hereof . . .
"That because of the damage heretofore caused by defendants to the property of the plaintiff, defendants have injured and damaged the plaintiff in the sum of $17,525.24."
After a trial of the case in which the judge determined all issues of law and fact without intervention of a jury, the court entered a general judgment for plaintiff in the amount of $8,600.
Defendants excepted to the trial court's judgment overruling their demurrers to the amended declaration and to the judgment denying their motion for new trial.
1. This action was treated by the parties and the court below as an action for damages for breach of covenants in the lease agreement between plaintiff and defendants. The express covenants upon which recovery is sought were not alleged but were supplied by plaintiff's introducing into evidence, without objection, the written lease contract. The express covenants provided: "Lessee shall pay water rent for the said premises and all bills for gas, electricity, fuel, light, heat, or power for premises or used by lessee in connection therewith. If lessee does not pay the same, lessor may pay the same and such payments shall be added to the rental of premises . . . At termination of this lease, lessee shall surrender premises and keys thereof to lessor in same condition as at commencement of term, natural wear and tear only excepted."
"As a general rule, where an action is brought after expiration of a term for breach of a lessee's covenant to keep the premises in repair or to surrender them in good repair or in the same condition as when leased, the measure of damages is the reasonable cost of putting the demised premises into the required state of repair or the condition contemplated by the covenant." 80 ALR 2d 983, 1001.
In cases of this nature, "The burden is on the landlord to show that the lease is terminated, to show the condition of the premises at the commencement and at the termination of the term, and to show the cost of restoring the property." 51 CJS 1163, Landlord and Tenant, § 416. See 45 ALR 9-84; 10 ALR2d 1006-1028; 20 ALR2d 1320-1359.
In order to establish a breach of such an agreement, it is essential that the plaintiff prove with a reasonable degree of certainty and specificity the condition of the premises, or the portions of them in question, both at the inception and at the termination of the tenancy, or that he show specific acts of waste or damage the results of which at the end of the term had not been repaired. Moreover, he must establish the reasonable cost of restoration in relation to the specific injuries shown. With respect to the latter requisite, it will not suffice merely to prove the cost of a complete reconstruction of the premises or portions of them, unless it is proved that actions of the tenant resulted in such gross and extensive injuries as to require complete reconstruction. Poesy v. Closson, 84 Ida. 549 ( 374 P.2d 710). The only evidence of the cost of restoration of the building was in the form of an estimate by a building contractor of the cost of putting the building "in first-class condition." Since the evidence fails to show that the injuries inflicted by defendants necessitated the complete renovation of the building, no verdict for plaintiff can be based upon the total sum estimated by the contractor.
Despite the fact the contractor's estimate is separated into figures reflecting the cost of material and labor in repairing specific items and despite indulging in an assumption that some of those items were properly proved, a simple addition of those properly proved figures together with the amount of $602.21 for breach of the covenant to pay utility bills results in a sum far short of the verdict and judgment of $8,600.
The evidence showed that plaintiff spent the amount of $2,359.71 for cleaning the premises after defendants moved, but there was no evidence to the effect that the property was in a clean condition at the beginning of the term. In this respect the proof failed.
C. Z. Borochoff, president of the plaintiff corporation, testified that the premises were in "fair" condition at the beginning of the term. Another witness testified that "There was nothing wrong with the building . . . before Spacemaker moved into the premises . . . The building was in good condition." Vague, indefinite testimony like this is insufficient to meet the burden of proving the condition of the premises at the beginning of the term.
A new trial must be granted on the general grounds because the verdict was not warranted by the evidence.
2. Other contentions of counsel as argued in their briefs are not properly before the court and will not be considered. Not having been properly appealed, those matters have now become the law of the case. The assignment of error on the judgment overruling the demurrers of the plaintiff in error was abandoned.
Judgment reversed on the general grounds of the motion for new trial. Frankum and Hall, JJ., concur.