
    William G. Tuller and others v. John H. Davis and others.
    The complaint alleged that the defendants agreed to let to the plaintiffs the first floor and basement in a building then.in the course of erection, and known as No. 91 Liberty street, and to finish the premises in the same manner as the store then oeeupied by A. E. Eno, in the same street. The complaint then averred that the said premises were not so finished, but that owing to the bad construction of the roof upon the building, the water therefrom fell down into the said first floor and basement, and greatly damaged the silks, goods, <fcc., of the plaintiff’s kept therein. The defendants demurred, upon the ground that the facts set forth were not sufficient to constitute a cause of action.
    
      Held, that the facts set forth showed sufficiently a breach of the defendants’ covenant, entitling the plaintiffs to a recovery of damages.
    Judgment for plaintiffs upon demurrer.
    (Before Oakley, Ch. X, Duek and Campbell, J.X)
    Dec. 12, 1854;
    January 13, 1855.
    Appeal from a judgment for tbe defendants upon a demurrer to tbe complaint.
    The complaint is in these words:
    Tbe plaintiffs in this action complain of tbe defendants herein, and state and show to tbe court, that they, the said plaintiffs, were, on the 10th day of November, 1852, and still are copart-ners doing business in the city of New York, in the name, firm and style of Tuller, Hutchins & Lassell, and that on the same day and year aforesaid, the said defendants were and still are copartners, doing business in tbe firm name of Davis, Byrne, Johnson & Hance; and that on the day and year aforesaid, the said plaintiffs, as such copartners, entered into an agreement, in ■writing, with the said defendants, bearing date the same day and year aforesaid, duly executed by the respective parties, in their said copartnership name, which said agreement is substantially as follows: — “Memorandum of agreement made this tenth day of November, eighteen hundred and fifty-two, between Dayis, Byrne, Johnson & Hance, of the first part, and Tuller, Hutchins & Lassell, of the second part, witnesseth: that the said parties of the first part have agreed to let, and the said parties of the second part have agreed to hire, the premises known as the first floor and básement of number ninety-one (91) Liberty street, in the city of New York, upon the following terms and conditions, viz: the building now being erected upon said premises is to be finished, and possession thereof given by said parties of the first part, on the first day of January, eighteen hundred and fifty-three, provided that in the event of the premises not being fully completed by the time specified, viz: the first day of January, 1858, the said parties of the first part using all due diligence to secure the completion of said premises, that the said parties of the second part are not to pay any rent whatever until said premises are fully completed, as in said agreement hereinafter specified, the said premises and fixtures to be finished in the same manner as the store now occupied by Amos R. Eno, in the same street, and in addition thereto, the parties of the first part are to furnish shelving to the amount of five hundred dollars. On or before the first day of January, 1853, the parties of the first part are to execute a lease (to contain the customary conditions) of said premises to the parties of the second part, for the term of three years, at. the yearly rate of three thousand five hundred dollars, to be paid on the-usual quarter-days, which lease the parties of the second part agree to accept, it being understood, however, that there shall be no condition inserted in said lease to prevent the said parties of the second part from underletting said premises if they desire so to do, provided that the said parties of the second part shall not underlet said premises for any other business than for the fancy silk or dry goods business, unless by the written consent of the said parties of the first part. In consideration whereof, and of one dollar by each of the said parties to this agreement, to the other paid, they bind themselves, their heirs, executors and administrators, each to the other, to the full and faithful performance of this agreement. In witness whereof, the parties hereto have hereunto interchangeably set their hands and seals, the day and year first above written.” And the said plaintiffs aver, that after the making of the said agreement, and on or about the first day of February, 1853, the said defendants delivered, and the said plaintiffs took possession of the said first floor and basement of the said building, number 91 Liberty street, under and in pursuance of said agreement, no lease or other agreement having been made or executed between the said parties; and that they the said plaintiffs, took possession thereof upon the faith and assurance of the said defendants, and the full belief thereof, that the said premises were finished in the same manner as the store then occupied by Amos R. Eno, in the same street, and in .accordance with the terms of said agreement. And the said plaintiffs further aver, that the said premises were not finished in the same manner as the store, then (at the time of making such agreement) occupied by Amos R. Eno, in the same street, but on the contrary thereof, the roof of the said building, and the gutters, water-courses and leaders therefrom were finished and constructed in a different and less perfect manner than those upon the store then occupied by the said Amos R. Eno, in the same street, and an obstruction was placed over the top of the leader that conducted the water from the said roof of said building, which obstructed and prevented the water from passing off from said roof, whereas no such obstruction was placed over the top of the leader, or gutter, or water-course from the roof of the store then occupied by said Amos’ R. Eno, in the same street; and in consequence thereof, the water falling upon the roof of said building, mentioned in said agreement, was obstructed and prevented from passing off through the gutters, water-courses or leader, and was forced back upon, and run through the skylight in the roofj and down into the said first floor and basement, and upon the silks, goods and wares, and merchandize of the said plaintiffs kept therein, and greatly damaged the same. And the plaintiffs aver, that they thereby sustained damages to the amount of four thousand dollars, and wholly in 'consequence of the said building, and the roof thereof, and the gutters, water-courses- and leader therefrom, being finished in a manner different from and less perfect than the store then occupied by the said Amos R. Eno, in the same street. Wherefore, the said plaintiffs demand judgment against the said defendants, for four thousand dollars, and interest from the first day of July, 1853, with costs of this action.
    The demurrer was on the ground that the complaint did not state facts sufficient to constitute a cause of action. It was allowed at Special Term, and judgment thereon rendered for the defendants, with costs.
    
      W. Clark, for the plaintiffs,
    now moved for a reversal of the judgment, and insisted,
    That by the agreement between the parties, the defendants were bound to finish the entire building in the same manner as the store of Amos R. Eno, in the same' street, was finished; and that the terms “ premises and fixtures," as they are used in the agreement, include the roof, gutters, &c.
    That to construe the agreement as extending only to the first floor and basement, was contrary to the plain and manifest intention of the parties as collected from the whole instrument. And that moving into and taking possession of the premises, did not preclude the plaintiffs from setting up a claim that the premises were not finished in accordance with the agreement.
    
      W. Hutchins, for the defendants,
    argued as follows:
    The plaintiffs have agreed to hire the premises known as the first floor and basement of Ho. 91 Liberty street, in the city of Hew York, and the defendants have covenanted “ that the said premises and fixtures shall be finished in the same manner as the store now occupied by Amos R. Eno, in the same street,” &c. The agreement, therefore, as set forth in the complaint, provides that the premises hired by the plaintiffs were to be finished in the same manner as such premises in the store occupied by Amos Eno, in the same street, were finished. The premises hired by them being the first floor and basement; there was no obligation incurred by the defendants to finish any other portion of the premises in the same manner as the store occupied by Eno than that portion which from the agreement it appears the plaintiffs hired of the defendants, and there being no allegation that the defendants are liable for negligence or otherwise, and no allegation that the premises hired by them were not finished in the same manner as the store occupied by Eno, in the same street; the complaint does not state facts sufficient to constitute a cause of action, and should therefore be dismissed.
    And we further insist that the parties, subsequent to the making of the agreement, having accepted the premises, moved in and taken possession thereof, are now precluded from setting up a claim that the premises were not finished in accordance with the terms and conditions of the agreement.
   By the Court.

Campbell, J.

The construction which the counsel in support of the demurrer have given to the covenant of the defendants may be literally and grammatically correct, but it is manifest to us that its adoption would defeat the true intentions of the parties, as fairly to be collected from their whole agreement, and we, therefore, cannot adopt it. According to this construction, if the defendants had finished the first floor and basement, which they let, in the same manner as the first floor and basement in the budding of Mr. Eno, leaving the rest of the building incomplete, without any roof at all, they would have performed their covenant, and entitled themselves to demand the whole of the large rent which the plaintiffs stipulated to pay; and this, although the premises let, from the want of a roof, would have been so open to the weather, so exposed to winds and rains, that they could not have been occupied at all for the purpose for which they were hired. We cannot hesitate to reject a construction that would lead to such consequences.

It may be that the defendants were not bound to finish the entire building so as to make it correspond in all respects with the building of Mr. Eno, but they were bound so to finish the first floor and basement which they let to the plaintiff, as to render them just as tenantable, just as fit in all respects for the purposes for which they were hired as the same compartments in the building of Eno, and if this could not be done, without putting a roof upon the building, similar to that on the building of Eno, it was such a roof that they were bound to construct. Hence, if from the want of such a roof the plaintiffs have sus-tamed tbe damages of wbicb they complain, we cannot doubt, tbat tbe complaint sets forth causes of action that, if proved, will entitle them to recover.

Tbe objection tbat tbe plaintiffs have waived any claim for damages by entering into tbe possession of tbe premises demised, we think is folly answered by tbe averment in tbe complaint, tbat they entered into possession in tbe full belief tbat tbe premises were finished in conformity to tbe agreement of tbe defendants.

Tbe judgment for tbe defendants is reversed, and judgment upon tbe demurrer must be entered for tbe plaintiffs, with costs, but with liberty to tbe defendants to withdraw tbe demurrer, and put in an answer within tbe usual time and upon tbe usual terms.  