Cato Ladies Modes of North Carolina, Inc. v. Pope

203 S.E.2d 405 (1974)

21 N.C. App. 133

CATO LADIES MODES OF NORTH CAROLINA, INC. v. Gertrude W. POPE and John W. Pope.

No. 7410DC211.

Court of Appeals of North Carolina.

March 20, 1974.

*406 Cotten & Cotten by Michael A. Cotten, Fuquay-Varina, for plaintiff-appellee.

Jack Senter, Fuquay-Varina, for defendants-appellants.

HEDRICK, Judge.

Defendant having taken no exceptions to the findings of fact of the trial court, the only question presented by this appeal is whether the findings of fact support the conclusions of law and the judgment entered thereon.

Defendant-lessor contends that the court erred in concluding that he must compensate plaintiff-lessee for repairs made to the roof by the latter. The undisputed facts clearly reveal that the lease agreement between plaintiff and defendant contained a covenant which required defendant-lessor to repair any defects in the roof, that such repairs became necessary; that defendant-lessor failed to repair such defects after being notified by plaintiff-lessee of their existence; that the plaintiff-lessee employed the services of a roofing contractor to repair the roof and in so doing incurred expenses in the amount of $756.00. The general rule is that upon breach by the lessor of his covenant to repair, the lessee may make such repairs and collect from the lessor the reasonable cost of such repairs. See Annot., 28 A.L.R. 1448. North Carolina's adherence to this principle is exemplified by the following passage from Jordan v. Miller, 179 N.C. 73, 101 S.E. 550 (1919):

". . . the duty of the tenant, if the landlord fails to perform his contract to repair, is to do the work himself, and recover the cost in an action for that purpose, or upon a counterclaim in an action for rent, or if the premises are made untenable by reason of the breach of contract, the tenant may move out and defend in an action for rent as upon an eviction."

See also, Webster, Real Estate Law in North Carolina, § 213, pp. 251-252 (1971), Brewington v. Loughran, 183 N.C. 558, 112 S.E. 257 (1922). Therefore, the repair measures taken by the plaintiff-lessee were in all respects proper, and we are bound by *407 the trial court having found as a fact that such repairs were reasonable in cost.

Defendant-lessor further asserts that the court erroneously concluded that the plaintiff-lessee was entitled to recover $325.48 for damage to merchandise which resulted from defendant-lessor's failure to repair the roof. The uncontroverted findings disclose that plaintiff-lessee leased the premises from defendant-lessor for the express purpose of operating a retail store; that plaintiff-lessee had notified defendant-lessor on several different occasions that the roof was leaking and the defendant-lessor had failed to make the necessary repairs; that after suffering damage to its merchandise in the sum of $325.48 the plaintiff-lessee had the roof repaired to prevent further loss. These findings dictate that we make reference to the apposite legal principle which states:

"It frequently happens that as a result of the breach by the landlord of his covenant to repair, the property of the lessee is injured. Whether or not the damage recovered may include compensation for such loss must necessarily depend upon the circumstances of the particular case, such as the purpose for which the premises were leased, the nature of the defect, and the character of the property." 49 Am.Jur.2d, Landlord and Tenant, § 846, pp. 813-814.

Considering the aforementioned factors in conjunction with the findings that the plaintiff-lessee leased the premises for the purpose of operating a ladies' shop and that defendant-lessor covenanted to make repairs to the roof, we conclude that such damages as were suffered by the plaintiff-lessee were reasonably within the contemplation of the parties at the time of the making of the lease and thus were properly awarded by the trial court, Brewington, supra.

For the reasons herein stated, the decision of the trial court is

Affirmed.

CAMPBELL and BALEY, JJ., concur.