#### PURE OIL COMPANY OF THE CAROLINAS, INCORPORATED, v. DEWEY BASS and His Wife, LULA BASS.

(Filed 1 May, 1940.)

Landlord and Tenant § 26 — Complaint in action to recover proportionate rents prepaid npon destruction of premises by fire held good as against demurrer.

The complaint alleged that plaintiff leased premises for use as a filling station for a term of ten years, at an agreed monthly rental, the period of the lease to start when plaintiff approved the station to be erected by *490defendant lessors, that thereafter, by agreement, plaintiff paid defendants a lump sum in full satisfaction of rents for the unexpired portion of the term, and that subsequent to such payment the station was destroyed by fire and that defendant lessors refused to replace same as they were obligated to do under the terms of the lease and that plaintiff thereupon surrendered possession in accordance with the provisions of the lease, and demanded the return of the proportionate part of the rent for the unexpired term, which demand defendants refused. *Held,:*The complaint sets up a modification of the lease, without showing whether such modification was written or verbal, and the complaint is good as against demurrer, the facts appearing being insufficient for the court to determine, as a matter of law, that plaintiff is not entitled to recover.

Appeal by defendants from *Johnston, Special Judge,*at October Special Term, 1939, of MeckleNbubg.

Affirmed.

Tbe plaintiff, a corporation organized under tbe laws of North Carolina engaged in tbe business of selling oil and gasoline, complained tbat some time in June, 1935, tbey leased of tbe defendants certain premises in Alamance County to be used as a filling station for a term of ten years, upon a monthly rental of $35.00 for each month of tbe first five years, and $40.00 for each month of tbe second five years.

It was further provided in tbe lease tbat tbe lessors would erect a gasoline service station on tbe premises according to plans of tbe lessee, and tbat tbe ten-year term should begin when tbe lessee approved of tbe station so completed. Tbe station was completed as required on 14 September, 1935, and tbe ten-year period began on said date and plaintiff began paying tbe monthly rent from tbat time.

In August, 1937, in order to advance tbe payment of all tbe rentals due for tbe ten-year period and pay tbe same in one lump sum instead of by installment, an agreement was reached between tbe parties and a supplemental rent agreement was entered into whereby tbe lessee paid to tbe defendants, as lessors, tbe sum of $2,250.00, in full satisfaction of all monthly installments of rent during tbe unexpired portion of tbe ten-year lease contract. This payment was made as of 1 August, 1937, and tbe residue of said unexpired term amounted to eight years, one month and fourteen days.

Tbe plaintiff, as lessee, occupied tbe premises as a service station until 11 November, 1938, when tbe service station building erected under tbe contract- was completely destroyed by fire and tbe premises rendered unfit for occupancy as a gasoline service station.

It was provided in tbe rental lease contract, dated 29 June, 1935: “It is mutually agreed between tbe parties: tbat in tbe event tbe premises herein described and leased shall be rendered unfit for occupancy by fire or storm or any other cause, tbe rental named in this lease to be paid shall cease until such time as tbe property is again put into satis*491factory condition for occupancy, which shall be done at the expense of lessor, and which said lessor agrees to do forthwith, after said premises have been rendered unfit for use or occupancy, as aforesaid. If, for any reason, the said premises are not fully and completely restored, and again ready for occupancy within ninety (90) days, lessee may, at its option, cancel this agreement and everything herein contained.”

The plaintiff complains that more than ninety days have elapsed since the building was destroyed by fire and the defendants, although demand has been made upon them, have failed and neglected to reconstruct the building and refuse to do so, and, further, that the plaintiff has surrendered possession under the terms of the lease.

Plaintiff further alleges that it has demanded the return to it of the portion of monthly rents advanced which will be applicable to the unexpired portion of the lease contract remaining after 11 November, 1938, the date of the destruction of said premises by fire, and that the defendants have refused to return the same.

Plaintiff claims that by reason of the facts so alleged the defendants are indebted to it in the sum of $1,896.18, judgment for which, with interest and costs, it demands.

The defendants filed a demurrer to the complaint for the reason that it does not state sufficient facts to constitute.a cause of action.

The demurrer was overruled and defendants appealed, assigning errors.

*W. F. Wimberly and Cherry & Hollowell for plaintiff, appellee.*

*Thomas C. Carter for defendants, appellants.*

Seawell, J.

Without attempting to outline the future course of this action, we may say that the complaint sets up a modification of the original contract, whether oral or written does not appear, and the court is not now in possession of sufficient information to enable it to say with certainty, as a matter of law, that the plaintiff may not prevail in.its action. *Blackmore v. Winders,*144 N. C., 212, 216, 56 S. E., 874.

Whatever considerations led the defendants to demur at the present juncture may recur in the orderly development of the case under conditions which will enable the lower court, as well as this Court, to pass upon the matter with more precise information.

The judgment is

Affirmed.