Opinion
No. 3748.
November 28, 1929.
Appeal from Dallas County Court; John A. Rawlins, Judge.
Action by the Maple Terrace Apartment Company against George L. Simpson and others. Judgment for defendants, and plaintiffs appeal. Judgment affirmed.
The appellant, a corporation, brought the suit to recover $962.50, being the amount of rent, at the rate of $175 a month, claimed to be owing and unpaid under a written lease of an apartment or suite of rooms. The appellees answered by general denial, and specially averred, in effect, in right of removal from the apartment before the expiration of the lease, the failure and refusal of the appellant to abate or remove, as obligated to do, a nuisance — the keeping of a dog in the adjoining apartment, which seriously disturbed the peace and quiet of the family in the reasonable use and enjoyment of the apartment leased to them. The parties entered into a written lease of the apartment, numbered 410, for a year. The appellees occupied and used the apartment for 6 1/2 months, and then removed therefrom. The lease, so far as material to state, recites, namely:
"This agreement * * * witnesseth: That the said lessor does this day grant, demise and lease unto the said lessee, and said lessee does hereby hire and take as tenant to said lessor, Apartments No. 410, on the fourth floor of the building of the lessor, situated at Dallas, Texas, and known as Maple Terrace Apartments, to be used and occupied by the lessee as residence, and for no other purpose whatsoever, for the term of one year, beginning November 1st, 1927, and ending November 1st, 1928, at the agreed rental of twenty-one hundred dollars in twelve monthly installments of $175.00 per month, payable monthly in advance during the entire term of this contract at the office of the lessor in Dallas, Texas, or to any other person or agent and at any other place that the lessor may designate. The following express conditions are a part of this lease and are assented to by the lease:
"First. The lessee shall not assign this lease, nor sublet the premises, nor any part thereof, nor use the same, or any part thereof, or permit the same, or any part thereof, to be used for any other purpose than as above stipulated," etc.
"Second. * * * Lessor shall not be responsible for the acts or omissions of cotenants in said premises or apartment building. * * *
"Fifth. The prompt payment of the rent for said premises upon the dates above named, and the faithful observance of the rules and regulations printed upon this lease, and which are hereby made a part of this covenant, and of such other and further reasonable rules or regulations as may be hereafter made by the lessor, or the conditions upon which the lease is made and accepted, and any failure upon the part of the lessee to comply with the terms of said lease or of any of said rules and regulations now in existence or which may be hereafter prescribed by the lessor, shall, at his option, work a forfeit of this contract, and all of the rights of the lessee thereunder and thereupon the lessor, his agents or attorneys, shall have the right to reenter the said premises and remove all persons therefrom, and the lessee hereby expressly waives any and all notice required by law to terminate tenancy, and also waives any and all legal proceedings to recover possession of said premises, and expressly agrees that upon any violation of any of the terms of this lease, or of said rules and regulations now in existence, or which may hereafter be made, said lessor, his agents, or attorneys, may immediately reenter said premises and dispossess lessee without legal notice or the institution of any legal proceedings whatsoever. It is specially provided that the lessor, in the event it shall be necessary to repossess these premises by reason of a breach of the terms of this lease, may release said apartment for the account of the lessee at the best rates and on the best terms reasonably obtainable, and the lessee shall be liable to the lessor for any deficiency in the rentals stipulated in this lease."
The rules and regulations referred to in the above lease are printed on the back of the same, and, so far as need be stated, are as follows:
"No tenant shall do or permit anything to be done in said premises, or bring or keep anything therein which will interfere with the rights of other tenants, or in any way injure or annoy them, or conflict with the laws relating to fires, or with the regulations of the fire department, or with any insurance policy upon said building or any part thereof, or conflict with any of the rules and ordinances of the sanitary authorities.
"Tenants, or servants, shall maintain order in building, shall not make or permit any improper noises in the building, or interfere in any way with other tenants, or those having business with them.
"Tenants, at the termination of the lease of the premises, shall return all keys of doors, closets and storerooms.
"No animals, birds, bicycles or other vehicles shall be allowed in the corridors, halls, elevators or elsewhere in the building, and the agent reserves the right to remove any and all objections and nuisances, and a failure on the part of the agent to remove same promptly does not constitute a waiver in this regard."
Mr. Simpson, his wife and daughter, aged four years, occupied apartment No. 410. Apartment No. 410 immediately adjoins apartment No. 411. About January 1, 1928, apartment No. 411 was leased to Mr. Crespi, a bachelor. Mr. Crespi kept two servants, who moved into the apartment with him. He owned and kept in the apartment a large German police dog weighing about 125 pounds. The dog was kept in the apartment with the knowledge and without objection of the managing agent of the appellant. The evidence in behalf of appellee, briefly stated, is that the presence of the dog in the adjoining apartment during the daytime and the nighttime disturbed and excited his daughter and wife; that the presence of the dog in the elevator, used by the wife and daughter along with the other occupants of apartments, excited the wife and daughter and made the daughter very nervous; that on account of the dog's being kept in the apartment the door of the appellee's apartment had to be kept closed in order to quiet the young daughter; that the dog would vomit at times during the night, and the occurrence would awaken and disturb the sleep of the daughter, appellee and his wife; that the occurrences and annoyances were timely reported and complained of by the appellee to the managing agent of the appellant; that the agent did not remove the nuisance, and that because of the agent's failure to do so the appellee removed from the apartment. The appellee did not claim that the dog was vicious. The evidence in behalf of the appellant, briefly stated, is that the dog did not vomit at night; was kept in the apartment attended by a servant, and did not run over the building or in the hallways; was a quiet, well-trained dog, and not vicious; that appellee never made complaint of the dog to the managing agent of the appellant. It was proved that the appellee purchased a home on May 6, 1928, and moved thereto about a week later.
The case was submitted to the jury on special issues, namely:
"Special Issue No. 1. Did the defendant George I. Simpson on or about the latter part of February or the middle of March, 1928, complain to Mr. Roberts as manager of the plaintiffs, that a dog was being kept in apartment 411, adjoining the apartment occupied by the defendants?"
Jury answer: "Yes."
"Special Issue No. 2. Did the defendant George I. Simpson after the middle of April, 1928, complain to Mr. Roberts, as manager of the plaintiff, that a dog was being kept in apartment 411, adjoining the apartment occupied by the defendants?"
Jury answer: "Yes."
"Special Issue No. 3. Did the keeping of said dog in the apartment adjoining that occupied by defendants constitute a `nuisance' as same is hereinafter defined?"
Jury answer: "Yes."
"Special Issue No. 4. Was the fact that the dog was kept in the apartment adjoining that occupied by the defendants the proximate cause of defendants vacating the apartment involved in this suit?"
Jury answer: "Yes."
There is evidence to support the findings of the jury.
W. P. Donalson, of Dallas, for appellant.
Walter B. Branan, of Dallas, for appellees.
Appellant's assignments of error Nos. 1 to 5, inclusive, present, in effect, the points in view that the appellees have shown no defense to the claim for rent because (1) the lease expressly provided that the "lessor shall not be responsible for the acts or omissions of cotenants in said premises or apartment" building; and (2) the rules and regulations referred to in the lease were solely for the benefit of the lessor, and the enforcement solely at its option, and were not for the benefit of appellees as lessees. The provision in the lease exempting the appellant from acts of the tenants does not apply to such acts as may be authorized or done under the sanction of the appellant's managing agent. 16 R.C.L. 694; Wade v. Herndl, 127 Wis. 544, 107 N.W. 4, 5 L.R.A. (N.S.) 855, 7 Ann.Cas. 591; McKinny v. Browning, 126 A.D. 370, 110 N.Y.S. 562.
In this case it may not be said that the "nuisance," as found by the jury, was created only by the acts of a cotenant of the lessor and without the sanction or assent of the lessor. According to the evidence, the managing agent of appellant knowingly permitted the cotenant to keep a dog in apartment No. 411, and failed to make any effort to have the dog removed from such apartment after notice, and the keeping of the dog in such apartment constituted a private nuisance. The keeping of the dog in the apartment was an act on the part of the cotenant which was inconsistent with the purpose for which he leased his portion of the premises. Such act was in positive violation of the rules and regulations, made a part of the lease contract, forbidding any "animal" in the building. That regulation, appearing in all leases of the apartments in the building, was made, as set out, in order to "reserve the right to remove any and all objections and nuisances." The particularly reserved right of the lessor to "remove nuisances," such as allowing animals on the leased premises, was evidently in the interest of the enforcement of the lessor's covenant to all tenants of apartments in the building of quiet enjoyment.
The covenant of quiet enjoyment may be implied from the lease in evidence from the use of the words "grant, demise, and lease." 36 C.J. p. 74, § 695; 5 Elliott on Contracts, § 4559; Alford v. Thomas (Tex.Civ.App.) 238 S.W. 270; Coal Co. v. Fox (Tex.Civ.App.) 228 S.W. 1021; Maxwell v. Urban, 22 Tex. Civ. App. 565, 55 S.W. 1124. In virtue of such covenant of quiet enjoyment the legal duty arose on the part of the lessor to protect the appellees against the acts of the cotenants in the adjoining apartment, operating to disturb them in their quiet enjoyment of apartment No. 410. The lessor was able to perform that duty under the terms of the lease, and by the failure of its managing agent to put an end to the nuisance complained of after notice the appellees were deprived of the reasonable enjoyment and quiet of their home, justifying their claim of eviction, as that term is understood in the law. It is thought that the assignments of error should be overruled.
Assignments of error Nos. 7 and 8 complain of the refusal of the court to submit the following requested special issue: "Was the purchase of a home by the defendants the cause of their removing from the apartment in question?" It is claimed that there was evidence that the motive which prompted appellees in removing from the apartment was the acquisition of a home of their own. Such evidence is only a collateral and slight circumstance bearing upon the good faith of appellees' claim that the leased apartment had become uninhabitable because of a private nuisance for which the lessor was responsible. If at all a materially distinct issue to be found by the jury, the motive of appellees was sufficiently submitted in issue No. 4, reading: "Was the fact that the dog was kept in the apartment adjoining that occupied by the defendants the proximate cause [the motive] of defendants vacating the apartment involved in this suit?"
The judgment is affirmed.