C. Edgar LEAFDALE, d/b/a Leafdale Egg Company, Appellant,
MESA WHOLESALE SALES TERMINAL, Inc., a corporation, Appellee.
[79 Ariz. 113] H. Lavon Payne, Mesa, Carl Tenney and J. A. Yankee, Phoenix, for appellant.
Oakley J. Ray and Kenneth C. Chatwin, Phoenix, for appellee.
On June 23, 1951, the Mesa Wholesale Sales Terminal, Inc., hereinafter designated plaintiff, leased a large building to C. Edgar Leafdale, hereinafter designated defendant, for the purpose of maintaining and operating an establishment for wholesaling and retailing poultry, eggs, butter, cheese and related merchandise. The term of the lease is five years from August 1, 1951, to July 31, 1956. The plaintiff as landlord agreed to make certain repairs and replacements, among whith was 'furnish and install a blower cooler of adequate capacity for the demised premises'. Prior to defendant's opening up his establishment for the operation of his business, the plaintiff installed two blower coolers of 5500 cubic foot capacity. Defendant took possession paid the rent to and including August, 1952, and, although remaining in possession, failed to pay thereafter. Plaintiff brought suit for the rent. Defendant answered denying liability and counterclaimed for damages upon the ground that plaintiff had [79 Ariz. 114] failed to make certain repairs and replacements as agreed in the lease, including failure to furnish and install a blower cooler of adequate capacity. The court, sitting without a jury, made findings of fact and rendered judgment in favor of plaintiff for the rent due and for the plaintiff on the defendant's counterclaim.
Among the facts found were the following:
'4. That evaporative cooling was furnished by plaintiff in accordance with the terms of said lease prior to the occupancy by the defendant and was adequate and reasonable for said premises and that the defendant accepted the same.
'6. That the defendant failed to prove and sustain any damages as alleged in his counterclaim, designated as a cross-complaint, by reason of any breach by the plaintiff.
'7. That there had been no breach of the aforesaid lease agreement by the plaintiff and that the same has been and now is in full force and effect from the date thereof.'
Defendant appeals presenting eleven assignments of error with considerable duplication but taken together they are:
(1) That the undisputed evidence shows plaintiff was in default on a substantial covenant in the lease;
(2) That by the undisputed evidence defendant is entitled to recover damages on his counterclaim;
(3) That there is no substantial evidence to support said findings No. 4, 6, and 7; and
(4) That the court erred in rejecting evidence concerning what was in the contemplation of the parties as to the meaning of the term 'adequate capacity' with respect to the installation of the coolers.
Defendant's principal complaint is that the evidence without dispute proves that the plaintiff violated the provisions in the lease requiring it to furnish and install a blower cooler of adequate capacity and urges that being thus in default, plaintiff is precluded from recovering the rent. The correct rule is that where the lessor agrees to make repairs or install improvements and the lessee goes into possession and uses the premises for the purposes intended, the lessee cannot defend against the payment of the stipulated rent upon
the ground that such installations are inadequate. Under such conditions his only remedy for breach of the lessor's agreement is to counterclaim for any damages he might suffer as a result of such breach. Goelet v. Goldstein, 229 A.D. 456,242 N.Y.S. 586; 32 Am.Jur., Landlord and ...