
    William H. Clark v. John W. Babcock.
    
      Lessor not generally bound to repair: His covenants to do so not to be enlarged. A lessor is under no general obligation to’put premises in repair, and his covenants to do so are not to be enlarged beyond their fair intent, and he is not responsible for any damages not contemplated by the lease as chargeable to him, as the result of a failure.
    
      Lease construed. A lease of a saw-mill, and salt-works to be run in connection with it, was made February 10th, for a year from February 1st. The lessor was made liable to a deduction of rent, for delays caused by breakage, etc., and this was made on the basis that the running year began May 15th, and continued only bís months. The lease required the lessor to put the salt-works in order by March 15th, and the mill by April 15th; in default of which, the lessee was authorized to complete the work “at the expense of said first party, and deduct the same from the first payments • Held, That the lease contemplated that the lessee, having the same time allowed him as was given to the lessor, would be able, after the lessor’s default, to finish the work before the business season, and that it did not authorize any claim for damages for delay, from the lessor’s failure to do the work in time, the remedy in the lease being evidently deemed sufficient to prevent any probable loss, to the lessee from such delay.
    
      Covenant of capacity not implied in lease of salt-well. A lease of a salt-well implies no covenant that the well shall be of any particular productive capacity. In the absentee of any distinct agreement, the lessee takes it as he finds it.
    
      Courts will not assume judicial knowledge of matters of fact. When the lessor was charged with having, by improper measures, in the repairs he was bound to make, rendered the salt-well less productive than it would have been otherwise, and the court held he would .be responsible therefor, if guilty, but the testimony of all the witnesses informed on the subject, was in his favor, and the question was properly left to the jury as a question of fact.
    
      Held, that the court could not assume a judicial knowledge on thesubject of the* proper method of boring and tubing salb-wells, which would justify it in holding the instructions erroneous as matter of law, and declaring the lessor to he in fault.
    Such matters are matters of fact, and courts are not bound to have, and this court does not assume to have, any judicial knowledge on the subject.
    
      Heard April 28 and 29.
    
    
      Decided July 7.
    
    Error to Bay Circuit.
    The nature of the case and the facts are sufficiently stated in the opinion.
    
      Mansion & Hatch, for plaintiff in error.
    
      Grier & McDomll, and O. I. Walker, for defendant in error.
   Campbell, Ch. J.

Babcock sued Clark as his lessee, for rent. The defense set up by way of recoupment, was under a claim for damages, partly for delay in getting the property in condition for profitable use, and partly for expenses in repairs.

The lease, dated February 16, 1869, but covering a term of one year from February 1, 1869, demised a “steam saw-mill and salt-works ” and the lands thereunto belonging and appertaining, described in full, with a reservation of certain houses and premises not used for -business. Upon notice to be given on or before October 1, 1869 (which was actually given), the lease was to be. extended two years more, but subject to be defeated by the lessor on notice and payment of certain sums named. The lease was renewed without countermand. The rent was ten thousand dollars a year, one thousand dollars to be paid to the lessor for repairs to be made by him, one thousand dollars for insurance, and the balance as specifically provided. The clause which has led to this controversy is as follows:

“It is also mutually agreed that said party of the first part shall, at his own expense, put the salt-works on said premises in complete running order on the 15th day of March next, and shall, at his own expense, put the mill on said premises in complete and good running order, on the 15th day of April next. In case said mill and salt-works aré not put in order as above at the times above specified, then and in such case said party of the second part shall have the right and privilege of completing the same at the expense of the first party, and deduct the same from the first payments.”

Provision was further made, that if the lessee should employ one Bunnell as engineer, all damages from breakages and explosions, and all damages caused by Bunnell’s; carelessness should be at the -lessor’s risk, and the lessee should have the privilege of repairing the damages and deducting the expense from the rent, and should have a-pro rata deduction from the rent for any time the mill should thereby be kept idle; and for the purpose of this prorata deduction, it was declared that “ the year shall be called the sawing season, viz: six months, commencing on the 15th day of May and ending on the 15th day of November, and shall be the pro rata of said sum of ten thousand dollars.”

The lease further provided that a total destruction of' the mill by fire, should terminate the lease, and that in-case of a partial destruction of the mill, the lessee might-repair at the lessor’s expense, deducting the cost from the rent, and during the repairs, the entire rent should cease running on the same pro rata, as in the case before provided. Possession was to be given and taken at once. The lessor failed to complete the salt-work repairs by the 15th of March, or the mill -by the 15th of April, and the lessee, after each of those days respectively, assumed and completed the repairs. The salt-works were put in complete running order by the 10th of April, but the supply of brine being unsatisfactory, further work was done from time to time on the well, extending into August. The mill was put in complete condition on the 11th of May.

The court below excluded all evidence of damages dependent on the preliminary delay in getting the property in running condition, and confined them (beyond the expenditures for repairs) to such as might arise out of the deficiency in the well to be noticed hereafter. The ground of this exclusion was that the lease did not contemplate any redress for such preliminary failure, beyond the right of the lessee to step in after March 15 th and April 15th, respectively, and complete the work at the lessor’s expense, to be applied as rent.

TJpon a careful review of the lease, we think this holding was proper. It appears distinctly from subsequent clauses that the parties had their attention called to, and made positive and full provision for, delays arising out of matters which the lessor agreed to be responsible for, by deductions from the rent for repairs to be made at his expense, the lessee being allowed to expend the money. And in those cases interruptions in the use of the property were to be allowed for by corresponding, stoppages of rent, the six months’ busy period being considered as the only period for which rent was to be computed. This being so, and delays in the outset being also expressly provided for, and the repairs being also provided for in such case to be made by the lessee and paid out of the rent, the absence of any further remedy to compensate for the delay is very significant, and requires the remainder of the lease to be scrutinized to see whether it can be regarded as an unimportant omission, having no legal bearing on the case.

The omission to provide any measure of damages, if it was really intended that a claim should exist, is singular, because the delay had been provided for in the other cases, by a sum certain, and not left to unliquidated damages, ■which in a case like this might be difficult of ascertainment, while a delay in advance would not be any more likely to be troublesome than one breaking in upon an established business. But it is also to be noted that as the lease was only for one year, the six months’ sawing season applied to 1869, and would not begin until May 15th. The lease being dated February 16th, allowed one month for repairs-on the salt-works and one month further for the mill, and in case either work was not done at that time, allowed the lessee to do it himself. The times which would elapse between the dates when he was to be 'at liberty to begin, and the commencement of the sawing season, corresponded with those originally allowed to the lessor, exceeding them by a day or two, or the difference between February and March. The parties must be supposed to have estimated how long it would take to execute auy necessary repairs, ’and to have allowed the lessor all needful time for them. Arid as the time thereafter remaining for the lessee to complete them would be quite as long, it is plain that it was not imagined any loss could probably accrue from the delay, as one party could proceed as diligently as another. There is nothing, then, in the nature of the case to render such a consequence unreasonable or unfair.

- The • subsequent facts could not have any bearing on this question, unless possibly the extent of repairs needed might have been concealed. But the case shows that all the work needed to do what was contemplated was actually done by the lessee in a shorter time than was allowed to the lessor, and was completed before the season for work began. There is nothing in the case, then, to indicate any hardship or variance from the natural inference derivable from the papers themselves. ■ ■

It is also to be remembered that the lessor, under such a • lease, would have been .under no obligation to repair,, without an express agreement to do so; and where such an agreement is coupled with a specific consequence in case of failure, this of itself has some slight tendency — without some' reason to the contrary — to favor the idea that no other remedy was contemplated. Such rules of construction, however, are not of much service, standing alone. But the fact that very careful and specific provision is made for later delays, is quite important, and, with the other provisions referred to, fully sustains the ruling below.

It is true the salt-works are not mentioned in the subsequent provisions for faulty delays. But this is explained by the fact that the lessee was expressly required to make all but the original repairs at his own expense, except in the specified cases of loss in the mill by fire, and by misconduct of Bunnell, and breakages in the mill. There was no anticipated case that could arise of injury to the salt-works, where the lessor would be responsible for accidents. It is also noteworthy that the lease was to terminate entirely as to the salt-works, though uninjured, whenever the mill was destroyed, and rent to cease for the entire premises, salt-works and all, when the lessee was repairing the mill in the excepted cases. The mill was evidently the principal, and the salt-works an incident, however valuable they may have been. There was no error in the refusal to allow damages for the first delay.

The other grounds of error relate to the condition of the' salt-well, and the losses supposed to have accrued by reason of its defects. The claim is two-fold, — -first, that the lessor was bound to furnish a well capable of supplying sufficient water in quality and quantity for the profitable use of the works; and, second, that he is liable for having actually rendered the well less productive than it would have been without his work.

We think there is nothing in the first suggestion. The lease was a lease of an existing property, which was merely to be put in order. No covenant can be implied that the well would be of any especial capacity. Such as it actually was, the parties leased it, and there is no possible foundation for any claim for losses from failure, unless it was injured by the lessor. The second question is the only one needing attention. To understand this, it is necessary to look at what was done.

The well was originally sunk by the lessee during some former occupancy. It had never been used, but had once been pumped about twelve hours, with satisfactory results. The lessor, in repairing it, provided for rimming it out and tubing it down deeper than the first tubing had gone. This, work was assumed by the lessee and continued for nearly a month after <the lessor’s time had run out, and it does not appear distinctly who was responsible for the deep tubing, but seems to be assumed, and we shall here take it for granted, correctly, that the lessor having made the plan contemplated it. There were three successions of salt rock. The upper one seems to have been unavailable, as Containing gypsum. The second and third were free from it. The tubing, as continued down, passed the second rock, and the supply was mainly or entirely drawn from- the third. The testimony shows, without contradiction, that when the tubing was put down to the third rock, everything was in good order, and the well yielded all it would yield from that point; but that yield was claimed to be less than it would have been if the lessor had not rimmed out the well as he did; and this is the injury complained of. The evidence showed, without contradiction, that there was no lack of skill or care in the lessor or his employes. The evidence tended to prove, and there was none to the contrary, that the gypsum could only be excluded by tubing below the first salt rock, and that the lessee, after taking possession, experimented with the well and caused the tubing to be raised, but the supply or strength of the brine was in no manner increased, nor was the well -in any manner benefited thereby, and the supply was then apparently all from the third salt rock. All the experts swore, and there was no evidence to the contrary, that rimming out the well in question, as was done by the plaintiff, could, in no manner, injure the well or its value, but from the fact that it increased the surface of the well it would increase the flow of the brine, and that sinking the tube down to the lower rock could not decrease the quantity of brine except while.the tubing was so sunk. The court further certified that the only evidence tending to show the cause of the deficiency of the well, was that it was probably affected by an adjacent well.

Taking these matters together, it appears from the judge’s statement, that there was no testimony whatever from which the lessor could be found to have in any way been responsible for any supposed damage to the well. But counsel claimed there were some facts in the case which might be made to bear that tendency, provided this court would take, as he claimed they should take, judicial notice of the means used in the construction of salt wells to make the tubing serve its proper purposes, and to shut out the detrimental matters that would otherwise injure the work. We cannot, however, assert any such knowledge, even if we possessed it. The whole inquiry is eminently one of fact, requiring a peculiar and scientific or practical knowledge, the result chiefly of local experience. No court can safely venture to propound theories in such cases, and the views of experienced men, who are examined before the jury as to facts as well as deductions from them, are necessary to arrive at the truth. When their testimony is uniform — and the «circuit judge says it was here — there would be manifest impropriety in our assuming that they were mistaken. And while the court below, properly assuming that it was for the jury to confide in them or not, left some questions of ■damage to be passed upon, yet after verdict, when he certifies to such entire uniformity of proof, no error could be maintained which required that proof to be disregarded.

But we do not conceive that even in this point of view the charge especially complained of could have misled the jury. A juror having asked whether the defendant had “the privilege of improving the salt-works, allowing that the plaintiff had failed to put them in order, — Would the plaintiff be liable?” the court replied: “If the jury are satisfied that when the defendant took possession, the well was simply not put in good running order, Mr. Clark had the privilege, and it was his duty, to. put the well in repair. That is his remedy furnished by the lease, to put it in repair; but if plaintiff had, by what he had done to it, rendered it incapable of being put in good running order, then it was not necessary that Mr. Clark should expend his money upon it.” This was equivalent to saying that if the well was capable of being put in order, the lessee was at liberty to repair it, and should do so under the lease and deduct the repairs from the rent, while he was not bound to throw away money on a well that had been made useless. A previous part of the charge had stated very explicitly the liability of the lessor to respond for any such injitry, as a distinct grievance and a violation of the conditions of his lease. The juror’s question seems to have been suggested by a portion of the charge, which had declared such an' injury would have been a failure to put in order, and the answer explained very well the different circumstances under which the lessee would or would not be compelled to expend money as a condition of recovery of damages or reduction of rents.

We think the judgment should be affirmed with costs.

Cooley and Graves, JJ., concurred.

Christiancy, J., did not sit in this case.  