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Book Prod. Industries v. Blue Star Auto Stores

DECEMBER 19, 1961.

BOOK PRODUCTION INDUSTRIES, INC. (CONSOLIDATED BOOK PUBLISHERS DIVISION), A CORPORATION, PLAINTIFF-APPELLANT,

v.

BLUE STAR AUTO STORES, INC., A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County; the Hon. CHARLES G. SEIDEL, Judge, presiding. Affirmed.

CROW, J.

The complaint in this case alleges that the plaintiff, Book Production Industries, Inc., as lessee, leased a building owned by the defendant Blue Star Auto Stores, Inc., for a term of five years, commencing May 1, 1955, by written lease with rider attached, to be used for the warehousing of books and printed matter; that the plaintiff lessee agreed to pay and has paid certain total rent; that a copy of the lease and rider are attached as Exhibit A and made a part of the complaint; that the plaintiff lessee took possession pursuant to the lease; that paragraph 22 of the rider to the lease provided that the defendant lessor keep and maintain the inside downspouts in good order and repair during the term of the lease; that the defendant lessor failed to maintain and repair the inside downspouts and as a proximate result thereof a section thereof on the third floor became rusted and weakened; that on or about April 26, 1959, that section of the inside downspout broke off, causing rainwater to run onto that third floor and thence to the floors below ruining large quantities of the plaintiff's printed matter which the plaintiff lessee had stored on the ground floor, resulting in damages of $4,000; that on April 27, 1959, the plaintiff notified the defendant that water had leaked through the ceiling of the ground floor from an unknown source, damaging its property, and the defendant failed to repair the defective downspout; that on June 25 and 26, 1959, it rained again, the plaintiff suffered additional similar water damage from rainwater pouring from the defective downspout onto the third floor and thence to the ground floor, the defendant was notified again of that water damage, and the defective downspout was not repaired; that on June 30 and July 1, 1959, it again rained, water leaked through the building, and the plaintiff sustained further similar water damage to the printed matter that it had stored; that on July 1, 1959, the plaintiff's employees located the trouble, which was a broken inside downspout, which information was communicated to the defendant, and the defendant then made repairs to the downspout; that damage to the plaintiff from the water leakage of June 25, 26, 30, and July 1, was $5200; that on July 23, 1959 additional property of the plaintiff was damaged by rainwater from another defective inside downspout on the first floor, to the extent of $1035; that in consequence of defendant's failure to perform all its obligations under the lease the plaintiff has been damaged $10,235; which the defendant refuses to pay; and the plaintiff prays for a money judgment of $10,235 and demanded a jury trial.

The copy of the printed lease attached to the complaint as Exhibit A provides, so far as pertinent:

"4. CERTAIN RIGHTS RESERVED TO LESSOR: Lessor reserves the following rights:

(d) To enter the premises at all reasonable hours for inspections, repairs, alterations or additions to the premises or the Building, . . . and for any purpose whatsoever related to the safety, protection, preservation or improvement of the premises or the Building, or Lessor's interests. . . ."

"6. WAIVER OF CERTAIN CLAIMS: Lessor shall not be liable, and Lessee waives all claims, for damage to person or property sustained by Lessee or any occupant of the Building or premises resulting from the Building or any part of it or any equipment or appurtenance becoming out of repair, or resulting from any accident in or about the Building, or resulting directly or indirectly from any act or neglect of any tenant or occupant of the Building or of any other person. This Section 6 shall apply especially, but not exclusively, to damage caused by water, snow, frost, steam, excessive heat or cold, sewage, gas, odors or noise or the bursting or leaking of pipes or plumbing fixtures, and shall apply equally whether any such damage results from the act or neglect of other tenants, occupants or servants of the Building or of any other person, and whether such damage be caused or result from any thing or circumstance above mentioned or referred to, or any other thing or circumstance whether of a like nature or of a wholly different nature. If any such damage results from any act or neglect of Lessee, Lessor may, at Lessor's option, repair such damage, whether caused to the Building or to tenants thereof, and Lessee shall thereupon pay to Lessor the total cost of such repairs and damages both to the building and to the tenants thereof. All personal property belonging to Lessee or any occupant of the premises that is in the Building or the premises shall be there at the risk of Lessee or such other person only, and Lessor shall not be liable for any damage thereto or the theft or misappropriation thereof."

"21. MISCELLANEOUS: . . .

(i) . . . all riders attached to this lease and signed by Lessor and Lessee are hereby made a part of this lease as though inserted in this section 21."

"A rider consisting of three pages containing sections 22 to 34, inclusive, is hereto attached and made a part hereof."

The copy of the three page typewritten rider entitled "Rider attached to and made part of Lease dated . . . etc.," which is a part of Exhibit A attached to the complaint, provides, so far as pertinent:

"22. Lessor shall at its own cost and expense keep and maintain the exterior of the demised premises, including roof, skylights, fire-escape, sewers and inside down spouts in good order and repair during the term of this lease."

"27. Lessee covenants and agrees that it will protect and save and keep the Lessor forever harmless and indemnified against and from any penalty or damage or charges imposed for any violation of any laws or ordinances, whether occasioned by the neglect of Lessee or those holding under Lessee, and that Lessee will at all times protect, indemnify and save and keep harmless the Lessor against and from any and all loss, cost, damage or expense, arising out of or from any accident or other occurrence on or about said premises, causing injury to any person or property whomsoever or whatsoever and will protect, indemnify and save and keep harmless the Lessor against and from any and all claims and against and from any and all loss, cost, damage or expense arising out of any failure of Lessee in any respect to comply with and perform all the requirements and provisions hereof."

The foregoing provisions of the printed lease and accompanying typewritten rider include the only provisions urged by either party here as ...


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