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NATIONAL BISCUIT COMPANY v. BAEHR BROTHERS (04/14/64)

April 14, 1964

NATIONAL BISCUIT COMPANY
v.
BAEHR BROTHERS, APPELLANT.



Appeal, No. 81, Oct. T., 1964, from judgment of County Court of Philadelphia, Sept. T., 1960, No. 10752-B, in case of National Biscuit Company v. Baehr Brothers. Judgment affirmed.

COUNSEL

Gerald J. Haas, with him John S. Bernheimer, for appellant.

Robert S. Ryan, with him Drinker, Biddle & Reath, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 203 Pa. Super. Page 134]

OPINION BY ERVIN, J.

The only question raised by this appeal is whether the landlord or the tenant is responsible for repairing certain incinerators. Plaintiff, National Biscuit Company (N.B.C.), seeks to recover the cost of replacing incinerators at each of three warehouses built and leased by the defendant, Baehr Brothers (Baehr), for the specific use of N.B.C. The three warehouses were built by Baehr and leased to N.B.C. by three written leases executed in November 1954. The leases were prepared by N.B.C. and were the same for about 250 buildings leased by N.B.C. from various landlords. It was agreed that as of January 1959 all of the incinerators were in such condition that they had to be extensively repaired and, since the cost of repairs would have exceeded the cost of installing new incinerators, the parties agreed that new incinerators should be installed and further agreed that the cost of installing each incinerator was $1,188.00 and for the three incinerators totaled $3,564.00. N.B.C. installed the three new incinerators and sued Baehr in an action in assumpsit for the recovery of the cost of making the

[ 203 Pa. Super. Page 135]

    three installations. The court below directed a verdict for N.B.C. and Baehr, after the dismissal of its motions for judgment n.o.v. and new trial, took this appeal.

The pertinent provisions of the leases relating to the repair obligations of the parties are: "9. The Lessor covenants and agrees during the continuance of this lease to keep the exterior of the building painted so that it shall at all times present an attractive appearance and to make and do all exterior repairs (except landscape planting which Lessee agrees to maintain) and all repairs of a permanent character and all repairs, additions or alterations which may at any time be required by Fire Underwriters, Public Utility Companies or Municipal or State Authority and all foundation or structural strengthening, alterations, reconstruction or additions necessitated by reason of defects or weakness, or by reason of building operations upon adjacent premises. If repairs which are the responsibility of the Lessor, as outlined herein, are not made within a reasonable time by Lessor after notice, Lessee may have said repairs made in a good workmanlike manner at reasonable prices and deduct such expenditures from the rental next becoming due under the terms of this lease.

"10. The Lessee covenants and agrees during the continuance of this lease to maintain landscape planting and to make all ordinary interior repairs and it is hereby agreed that any single repair job, the reasonable cost of which is $100.00 or over and which is not clearly an ordinary interior repair as distinguished from a structural repair or a repair of a permanent character, shall be considered a repair of a permanent character under the terms of this lease. Lessee agrees to make all repairs whatsoever on the demised premises made necessary by the negligence, carelessness, misconduct, or fault of the Lessee or its agents, licensees or invitees."

[ 203 Pa. Super. Page 136]

From the above it will be noted that paragraph 9 requires the lessor (Baehr) to do all exterior repairs and repairs of a permanent character. Paragraph 10 requires the lessee (N.B.C.) to do all interior repairs but further provides that if a single repair job costs $100.00 or more and is not clearly an ordinary interior repair as distinguished from a structural repair or a repair of a permanent character, this repair shall be ...


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