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Ganary v. Linker Realty Corp.

Decided: March 23, 1944.

WILBUR GANARY, PLAINTIFF-APPELLANT,
v.
LINKER REALTY CORPORATION, DEFENDANT-RESPONDENT



On appeal from a judgment of the Supreme Court.

For the plaintiff-appellant, Walter S. Keown.

For the defendant-respondent, Waddington & Tilton.

Donges

The opinion of the court was delivered by

DONGES, J. This is an appeal from a judgment of the Supreme Court, entered after a trial at the Camden Circuit. The trial judge directed a verdict for defendant as to plaintiff's claim and a verdict for defendant, against plaintiff, for the amount of rent due for the balance of the term of the lease between the parties.

Plaintiff sued to recover damages resulting from the alleged breach of an agreement of renting by the failure to install an adequate heating system and to repair the premises. The landlord answered, denying breach of agreement, and filed a counter-claim to recover the entire balance of rent reserved by the lease. The letting was for the term of three years from March 15th, 1941, for the total rent of $4,500 payable in installments of $125 per month. The leased premises consisted of three stores, factory space, garage space and an apartment. The lease provided that the lessee would use and occupy the premises as a tire store for the sale of and re-grooving of tires, machine shop and apartment, and for no other purpose without the written consent of the lessor first had and obtained.

The lease contained the following:

"Fifteenth. The Lessee has rented the demised premises after examination in their present condition (unless otherwise specifically agreed upon in writing) and without any representations on the part of the Lessor or any of its agents. If the Lessor has agreed to make repairs or to grant the Lessee premises occupied by other tenants, then in such event, if possession cannot be given at the time specified, this lease shall not be affected thereby nor shall Lessee have any claim against the Lessor by reason thereof, but no rent shall be due hereunder until the Lessor shall notify the Lessee by writing delivered to Lessee or addressed to Lessee's last known post office address, that the demised premises are ready for occupancy. The act of taking possession shall always be conclusive evidence that the premises were in satisfactory condition.

"Schedule of repairs attached."

Attached thereto was a schedule of the repairs to be made. These generally included repairs to walls, painting, installation of "oil burning type of heater capable of heating entire building," repair of all roofs "so that entire building is usable," check plumbing, check electrical outlets, carpentry checkup so that all doors and windows could be opened and closed, re-paper kitchen and back bedroom in apartment, sand and refinish floors in apartment, paint trim in apartment and re-condition gas range in apartment. This schedule contained the following: "The owner agrees to complete above repairs and the tenant agrees that these repairs are all he requires in order to consummate lease." This was signed by plaintiff, Wilbur Ganary.

The lease further provided:

"Nineteenth. This lease represents the entire agreement between the parties hereto and there are no collateral oral agreements or understandings. All additions, variations or modification of this lease shall be void ...


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