Judgment affirmed as modified.
Langmade & Langmade, of Phoenix, for appellant.
Udall & Peterson, of Safford, for appellee.
Kelly, Superior Judge. La Prade, C. J., and Stanford, Phelps and De Concini, JJ., concurring.
Note: Justice LEVI S. UDALL having disqualified himself, the Honorable HENRY C. KELLY, Judge of the Superior Court of Yuma County, was called to sit in his stead.
Kelly, Superior Judge.
[70 Ariz. 141] The defendant below, appellant here, prosecutes this appeal from the judgment of the court without a jury in favor of the landlords for damages to the real estate occurring during occupancy by the defendant in breach of the covenants of the lease.
In the year 1935 plaintiffs (appellees here) as owners leased certain real property including the freight depot involved in this controversy, by indenture, to Alabam Freight Company, a corporation, the name of which has been subsequently changed by the amendment of its articles to Alabam Freight Lines, for the term of one year. Before the expiration of the term the corporation appeared in the bankruptcy court in reorganization proceedings, a trustee was appointed who continued to [70 Ariz. 142] conduct its usual operations, including the use of the leased premises, and in May of 1937 the trustee was discharged and the same going business restored to the corporation and for many years it continued in the occupancy of the same premises until a relatively short time before the commencement of this action for damages to the building. These are shown by the testimony to have been incurred during the last two or three years prior to the surrender of the possession to plaintiffs. In the course of the reorganization proceedings no order appears to have been made affecting the lease in any way; and the final decree, which is an exhibit, seems fully to support the finding of the trial court that those proceedings effected no change in the relationship of the parties to the lease as landlord and tenant.
The lease contains four several stipulations on the subject of repairs. They must be set forth before a full understanding of the question presented by this litigation may be reached. 1. The lessee covenanted "that at the termination of this lease the lessee will return the premises above described to the lessors in as good a state of repair as they now are (in), natural wear, inevitable accidents and acts of God excepted"; 2. lessee agreed "to permit the lessors to enter into said premises at all reasonable times for the purpose of examining the same and making repairs and alterations that may be necessary for the safety and preservation of said premises"; 3. "It is further agreed that lessors agree to keep the building in a good state of repair"; 4. "unless any particular damage or injury to said building has been occasioned by the negligence of the lessee or its agents, in which event it shall be the duty of the lessee to make said repairs."
It is readily apparent that we are not now dealing with a contract of unequivocal clarity, but with one which contains clauses of different and substantially inconsistent implications necessary to be carefully surveyed to come at the intent of the parties or at the real meaning to be attributed to the language used in the light of the nature of the damages shown by the testimony. Because it has no direct bearing upon the issue we can eliminate from consideration that clause (No. 2) granting to the lessors the optional right of entry and inspection and of making such repairs as might be indicated by their judgment.
The primary question is one as to whether the covenant first above set forth, all of them appearing in the order in which they have been stated, is an absolute one taking precedence over the others, and fixing a definitive liability; or whether it is modified by the later clauses casting the duty of repair upon the lessor and holding the lessee only ...