Opinion
June 30, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 678
Brenman, Ciancio, Rossman & Baum, Melvin Rossman, Denver, for plaintiff in error.
Modesitt & Shaw, Leland E. Modesitt, Richard H. Shaw, Denver, for defendant in error.
ENOCH, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is an action for damages for a breach of a lease. The parties appear in the same order as in the trial court and will be referred to herein either as plaintiff or defendant.
Plaintiff and defendant entered into a lease whereby plaintiff was to lease her building to defendant for a period of three years, beginning January 1, 1965. The rent for the full term was stated at $18,000.00 and was payable in monthly installments of $500.00. The lease provided in part:
'* * * in case said premises shall become untenantable on account of damage by fire, flood or act of God, this lease may be thereupon terminated by the said lessee.'
A rider to the lease, and made a part thereof, contained the following:
'Landlord shall be responsible, at its expense for structural maintenance and repairs, including watertight integrity of exterior walls and roof.'
Plaintiff claimed that the defendant occupied the premises for a period of eleven months and subsequently vacated the premises in December of 1965 without just cause. As a result of the alleged breach by the defendant, plaintiff claimed damages in the amount of $4,577.64.
In its answer, the defendant admitted execution of the lease and that it vacated the premises in December, 1965. The defendant denied that it breached the lease. It claimed that the premises became untenantable on account of a fire which occurred on November 5, 1965. It further asserted that the plaintiff breached her obligation under the lease to repair the damage to the premises; failed to restore and maintain the watertight integrity thereof; and as a result, defendant was forced to vacate.
Trial was to a jury which rendered its verdict in favor of the defendant. On writ of error, plaintiff assigns three errors.
I
The plaintiff alleges the trial court erred in failing to direct a verdict in favor of the plaintiff. It is her position that where the damage is such as to cause a temporary interruption of the use of the property, which may be remedied with reasonable dispatch, the lease is not terminated and upon repair being made by the lessor, the lessee is obligated to pay the stipulated rent. While this is a correct statement of the law, the plaintiff further contends that the court has the duty of directing a verdict in favor of the plaintiff unless it is clearly shown by the defendant that the premises are damaged to such an extent that further occupancy is impossible and require not merely repairs, but rebuilding. In short, plaintiff claims the question of untenantability is a question of law for the court and not fact for the jury. We do not agree with this view.
The lease in this case specifically states that the premises were leased for the purpose of sale of fertilizer and insecticide products. The question of untentability must be resolved with this contemplated use in mind. Whether or not the defendant could carry on its business under the existing conditions was a question of fact and was properly submitted to the jury for determination. The trial court did not err in refusing to grant the plaintiff's motion for a directed verdict. It is the well established rule that in passing upon a motion for a directed verdict, the trial court must view the evidence in the light most favorable to the party against whom the motion is directed, and it can only be granted where the evidence when so considered shows no basis upon which a verdict in favor of such party could be sustained. Nettrour v. J. C. Penney, Inc., 146 Colo. 150, 360 P.2d 964.
II
The plaintiff claims that only the issue of damages should have been submitted to the jury. Plaintiff in effect, is complaining about the instructions which the trial court submitted to the jury. The record shows that counsel for the plaintiff stated that he had no objections to the instructions as given. Therefore, this assignment of error cannot be considered on review by this court. Nunn v. Car-Skaden, 163 Colo. 328, 430 P.2d 615; Boynton v. Fox Denver Theaters, 121 Colo. 227, 214 P.2d 793.
III
As her third assignment of error, plaintiff claims the court erred in allowing the defendant's witnesses to testify as to the loss of profits and business. It is submitted by the plaintiff that this evidence was not material to the question of whether or not the premises were untenantable. If the plaintiff's view of untenantability were accepted, that is the necessity of virtual destruction of the premises, this assignment of error would have merit. However, in light of our rejection of the plaintiff's theory in this case, we hold that consideration of defendant's loss of profits and business was material in determining whether or not the premises were fit for the purpose of selling fertilizer and insecticide products.
Judgment affirmed.
SILVERSTEIN, C.J., and DWYER, J., concur.