
    The Cincinnati Oakland Motor Co. v. Meyer.
    (Decided February 24, 1930.)
    
      Messrs. Hightower, O’Brien & Porter, for plaintiff in error.
    
      
      Messrs. Clarh <& Robinson, for defendant in error.
   Ross, J.

This case comes into this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered for the plaintiff. The case was tried to the court without the intervention of a jury upon an agreed statement of facts as follows:

‘ ‘ Susanna W. Hinkle leased to The Gilcourt Realty Company, its successors and assigns, on June 12, 1918, the premises hereinafter called ‘Oakland Building’ for a period of ten (10) years from the 1st of August, 1918. Said Oakland Building was then in the course of construction and was completed about the-day of July, 1918.-
“The Gilcourt Realty Company then leased said Oakland Building to the Cincinnati Oakland Motor Company, an Ohio Corporation, the defendant herein on the 27th day of July, 1918, for a period of ten (10) years from the 1st of July, 1918. A copy of said lease is attached hereto, made part hereof and marked Exhibit A.
“The Gilcourt Realty Company on the 29th of March, 1920, conveyed to the plaintiff, Henry Meyer, said leased premises by deed of general warranty, subject to the terms of the lease from the Gilcourt Realty Co. to the defendant.
“At the time said Oakland Building was erected a new furnace and heating system was installed therein and was in good order and condition. ■
“The said The Cincinnati Oakland Motor Company went into possession of said premises immediately after they were erected, and occupied the whole building.
“On or about the 1st day of January, 1926, said heating system failed to function, and, without prejudice to his rights in the matter, plaintiff employed Fosdick and Hilmer, Consulting Engineers, to make an examination of said heating plant; said examination disclosed that said heating plant could be repaired, but that it would cost as much to repair said furnace and heating plant as it would to install a new furnace and heating plant, and plaintiff and defendant agreed that plaintiff should install a new heating plant and pay for the same' without prejudice to the rights of either party as to who was obligated to remedy the condition of said old1 heating plant. Said plaintiff did then and there install a new heating plant and pay for the same, the cost thereof being the sum of One Thousand Eight Hundred Fifty-one and 67/100 ($1,851.67) Dollars, the amount prayed for in his petition.
“The question for the Court to decide in this case is this — Is the landlord, Henry Meyer, plaintiff herein, or the tenant, The Cincinnati Oakland Motor Company, a corporation, defendant herein, liable for this expenditure?”

The lease attached as an exhibit contains no covenant on the part of either landlord or tenant to. repair, except in the case of the tenant as the same may be inferred from the following language, “and at the end of said term it [the tenant] will deliver up said premises in as good order and condition as they now are or may be put by the said lessor, reasonable use and ordinary wear and tear thereof and damage by fire or other unavoidable casualty, condemnation, or appropriation excepted.”

In the absence of statute, ordinance, express stipulation, or covenant, the lessor is not bound to make repairs to the leased property. 36 Corpus Juris, Landlord & Tenant, page 125, Section 766; page 130, Section 769. 16 Ruling Case Law, page 1030, Landlord & Tenant, Section 552. Goodall v. Deters, 121 Ohio St., 432, 169 N. E., 443. Shindelbeck v. Moon, 32 Ohio St., 264, 30 Am. Rep., 584.

It appears from the stipulation that there was no contractual obligation upon the landlord to make repair of the heating plant.

In the absence of express stipulation, covenant, statute, or ordinance, the tenant’s obligation is not to repair generally, but is in effect an implied agreement against voluntary waste and to return the premises to the landlord in substantially as good condition as when received, reasonable wear and tear excepted. 36 Corpus Juris, 128, Landlord & Tenant, Section 767.

“This is, however, the extent of the tenant’s obligation, and if the landlord wishes to impose upon the tenant the duty of making repairs beyond these he can do so only by express covenant in his lease to that effect.” 16 Ruling Case Law, 1086, Landlord & Tenant, Section 603.

As the matter was presented to the court, the question raised was upon whom fell the burden of repairing the furnace. Under the stipulation, the fact that the landlord made the repairs is not to be considered in fixing the obligations of the parties. There is no obligation upon the landlord to repair the furnace, and there would be no obligation upon the tenant if the failure of the furnace to function was due to reasonable wear and tear. The heating plant had been in operation a little more than eight years. There is nothing in the record to show what was the normal period of usefulness of such a furnace as was here involved. There is nothing to show that the repairs were made necessary by reason of normal deterioration ; nor, on the other hand, is there anything to indicate that the furnace had been damaged by any act of the tenant which would constitute waste. But as the tenant is bound to put the premises in substantially the state in which they were received, and the effect of wear and tear constitutes an exception to this obligation, it must be shown that the necessity for repairs is due to reasonable wear and tear, in order to release him from the burden. The furnace men found that the necessary repairs would be as expensive as a totally new furnace. It is contended that the repairs amounted to a replacement, and were structural, and, therefore, within the obligation of the landlord. "We cannot see how even such a view would avail the tenant, for unless the landlord were directly instrumental in producing the necessity for replacement, he would still be under no obligation to replace even a structural failure. 36 Corpus Juris, page 130, Section 769.

It is manifest that the tenant required a heating plant for the continued convenient occupation of the premises. There would have, been no reason otherwise for the agreement between the landlord and tenant that the same should be installed. The plant was installed for his convenience. It is true that the landlord’s premises were thereby enhanced, but' this creates no liability upon him. The stipulation being wholly silent as to the cause of the defective condition of the plant, the burden being on the tenant to repair and replace, unless excused by a showing that reasonable wear and tear had caused the defects, we are constrained, to hold that -the installation was for the tenant’s benefit in fulfilling his duty, and must be at his cost.

While we consider the foregoing decisive of the rights involved, even if it were shown that the failure to function was due to ordinary reasonable deterioration, there being no liability, express or implied, upon the landlord to repair, we would still be compelled to hold that the repair must be at the cost of the tenant.

The judgment of the court of common pleas is affirmed.

Judgment affirmed.

Cushing, P. J., and Hamilton, J., concur.  