On appeal from the Supreme Court.
For the appellants, Samuel Koestler.
For the respondent, Abe J. David.
The opinion of the court was delivered by
DONGES, J. This appeal brings up a judgment of the Supreme Court entered on postea after a trial before Mr. Justice Daly, as Circuit Court judge, without a jury. The complaint originally contained four counts. The first and second counts set up that under an agreement of letting of certain store premises there were also let certain fixtures which were to be used by the defendant below without additional rent, and which, by the agreement of letting, were to be returned in the same condition as they were at the time of the letting; and alleging that by reason of a fire the fixtures were damaged and were not returned to the plaintiffs below in the condition in which they were when the defendant took possession thereof.
The third count sought judgment for a month's rent, as evidenced by a check given for the December, 1922, rental, which admittedly was not paid, and which was not contested at the trial; so that judgment was entered for the plaintiffs below on this count and there is no appeal therefrom.
The fourth count was abandoned at the trial.
The question, therefore, before us is whether the plaintiffs below were entitled to recover the cost of restoring the fixtures after the fire to the condition they were when the defendant entered into possession of them.
By the terms of the lease, it was provided, in the printed part, that at the expiration of said term, and the termination of the lease, the premises were to be surrendered in as good a state and condition as reasonable use and wear thereof would permit, damage by the elements excepted. In a typewritten portion it was provided: "The tenant hereunder shall have the right, without the payment of additional rental, to use the butcher and other fixtures in said premises, and upon the termination, expiration or sooner termination of this lease, shall return the same to the landlord hereunder in as good condition as the same now are."
It is admitted that on December 5th, 1922, a fire started in another portion of the building, without any fault or neglect on the part of the defendant, and extended to the defendant's premises, in consequence of which some of the butcher fixtures were damaged, some damaged beyond repair, and some totally destroyed. The plaintiffs below assert that the contract of letting, in so far as it related to the fixtures, imposed upon the defendant an absolute duty to return the property in as good condition as it was when he entered into possession of it, and this without regard to how any damage might occur.
Mr. Justice Daly found that there was no such obligation upon the part of the tenant. In his findings of fact, he found that there was no fault of the tenant, and that the defendant was not obligated to repair the fire damage to the fixtures.
By the testimony on behalf of the plaintiffs, it appears that some of the property was damaged beyond repair and some was destroyed. Other portions were damaged so that restoration would be possible. The plaintiff contends that the undertaking was an absolute one on behalf of the ...