#### N. A. ARCHIBALD v. N. L. SWARINGEN and D. L. BARNHARDT.

(Filed 15 December, 1926.)

1. Landlord and Tenant — Leases—Contracts—Stipulations—Termination of Lease — Repairs.

Where a swimming pool is leased for a year, under a written contract that the lease would terminate upon the pool becoming unfit for use: *Held,*a crack in the walls thereof by which the pool was drained of water, and repaired by the lessor at an inappreciable sum, is not sufficient to give the lessee the right to cancel the lease when repair was made under a parol agreement within a reasonable time. C. S., 2352.

2. Same — Reasonable Time.

Where the controversy is made to depend upon whether the damage to the leased premises had-been repaired by the lessor within a reasonable time, when the extent of the damage is insufficient to terminate the lease under its written terms, in this case the repair of walls of a dam to a swimming pool, evidence that three days had elapsed between the time the lessor and lessee had agreed upon the repairs necessary and the time the repairs were made, is sufficient to sustain an affirmative verdict that they were made in a reasonable time.

3. Verdict — Issues—Interpretation.

Where the verdict of the jury has determined that the leased premises was rendered unfit for the purposes of the lessee, which, under the terms of the instrument may terminate it, if of sufficient consequence, the verdict to another issue that the repairs were made in a reasonable time should be construed to harmonize with the first one.

Appeal by defendants from *McElroy, J.,*at August Term, 1926, of Cabarrus. No error.

Action to recover rent alleged to be due under a lease from plaintiff to defendants. Defendants denied liability for rent, as alleged in the complaint, contending that by virtue of a stipulation contained therein and also of the provisions of 0. S., 2352, the lease had terminated.

The issues were answered by the jury as follows :

1. Did the defendant, N. L. Swaringen, execute the lease as alleged in the complaint? Answer: Yes.

2. Did the defendant, D. L. Barnhardt, guarantee the performance of the conditions set forth in the lease and the payment of the rents to an amount not to exceed the sum of $1,300, as alleged in the complaint? Answer: Yes.

3. Was the swimming pool mentioned in the complaint cracked and rendered unfit for use without fault of the defendant, as alleged in the answer? Answer: Yes.

4. If so, did the plaintiff repair the same within a reasonable time? Answer: Yes.

*7575. In wbat amount, if any, are tbe defendants indebted to plaintiff? Answer: $1,300.

6. In wbat amount, if any, is tbe plaintiff indebted to defendants? Answer: $195.00.

From judgment upon tbis verdict tbat plaintiff recover of defendants tbe sum of $1,105, interest and cost, defendants appealed to tbe Supreme Court.

*Ar-mfielcL, Sherrin & Barnhardt for plaintiff.*

*Palmer & Blackwelder for defendants.*

Connor, J.

On 29 May, 1925, plaintiff leased to defendant, N. L. Swaringen, a certain lot of land, described in tbe lease, wbicb was in writing, and duly executed by botb plaintiff and defendant, for a period of one year. There was located on said land a swimming pool, wbicb added largely to its value as a recreation park and public playground. Tbe property was known as tbe Archibald Swimming Pool. Defendant agreed to pay as rent for said property tbe sum of $1,300 per annum, payable in monthly installments of $108.33, tbe first payment to be due on 29 June, 1925, and subsequent payments to be due on tbe 29th day of each month thereafter, during tbe period of tbe lease. On 6 June, 1925, defendant, D. L. Barnhardt, for a valuable consideration, and in writing, guaranteed tbe payment by defendant, N. L. Swaringen, of tbe rent and also tbe performance by him of tbe covenants in tbe lea'se. Defendant, N. L. Swaringen, entered into possession under tbe lease, paid tbe installment of rent due on 29 June, 1925, and has defaulted in tbe payment of tbe installments due subsequently. Tbis action was commenced on 7 June, 1926, to recover tbe balance due on tbe rent under tbe lease, and also certain sums of money wbicb plaintiff alleges he has paid out on tbe property, for wbicb be contends defendants are liable.

On Thursday night, 29 July, 1925, tbe wall of tbe swimming pool cracked, and tbe water began to leak out. On tbe next morning, defendant, Swaringen, notified tbe plaintiff tbat tbe wall bad cracked tbe night before and tbat tbe water was leaking through tbis crack. Plaintiff and defendant went to tbe property and examined tbe crack. It was agreed between them tbat tbe water should be drained out of tbe pool, so tbat it could be repaired. Plaintiff agreed to have tbe wall repaired on tbe Monday following, and defendant remained in possession of tbe property until Saturday night, when be gave a public dance there, in accordance with an advertisement wbicb be bad previously made. On Saturday, 31 July, 1925, plaintiff presented to defendant a bill for tbe rent due on 29 July, 1925, and defendant promised to pay *758tbe same on Monday. On Monday the crack was repaired by plaintiff at a cost of $50.00.

On 4 August, 1925, defendant notified plaintiff, by letter, that he thereby surrendered his lease on the property, for the reason that the crack in the wall of the swimming pool had rendered the property unfit for use and occupancy for the purpose for which defendant had leased the property; defendant further notified plaintiff that he denied liability for further rent under his lease. On *7*August, 1925, plaintiff notified both defendants that he denied the right of defendant, Swar-ingen, to surrender the premises for the reason assigned, and further that he would hold both defendants for the rent due and to become due under the terms of the lease. Defendant, Swaringen abandoned the leased premises on the Saturday night, after the wall of the swimming pool cracked, and before the Monday on which it was repaired by plaintiff. Plaintiff had no notice of such abandonment until after the repairs had been made.

It is stipulated in the lease that “if the said buildings should be destroyed or rendered unfit for use by fire or other casualty during said term, this lease shall, terminate.” Defendants rely upon this stipulation and upon C. S., 2352, to sustain their contention that they are not liable for rent which accrued after the wall of the swimming pool cracked, on the night of 29 July, 1925. They say, that “on 30 July, 1925, the wall of the swimming pool bursted and became damaged to such an extent that no water could be contained in the swimming pool, and became damaged to such an extent that the same could not be repaired for a number of days; whereupon the defendant immediately notified the plaintiff and the plaintiff agreed to repair said damage immediately, and the defendant held over under said lease from Thursday night until Saturday night, 1 August, 1925, at which time the plaintiff had taken no steps toward repairing said swimming pool, and the defendant, in accordance with the provisions of the statute and the terms of the lease, surrendered said leased premises to the plaintiff as he had a right to do, and thereby completed the cancellation of the lease, notified plaintiff of his intention and surrendered the lease in accordance with its terms, and the defendants, and each of them, deny that they are. liable for any rent beyond that time.” Defendants allege that they expended certain sums on the property for which plaintiff is liable to them and plead the same as a counterclaim or set-off to plaintiff’s recovery of the installment of rent due on 29 July, 1925, which defendants admit has not been paid.

Defendants excepted to the submission by the court, over their objection, of the 4th issue. Upon their appeal they rely chiefly upon their assignments of error based upon this exception, and upon an exception to the instruction of the court upon this issue, in the charge to *759tbe jury. Tbey contend that an affirmative answer to tbe 4tb issue is immaterial; tbat upon tbe affirmative answer to tbe 3rd issue, plaintiff is not entitled to recover rent under tbe lease, wbicb accrued after tbe date on wbicb tbe swimming pool, because of tbe crack in tbe wall, without fault of defendants, became unfit for use.

Defendants were not released of their obligation under tbe lease, to pay rent for tbe leased premises, under C. S., 2352. No issues were tendered by defendants upon wbicb facts could have been found by tbe jury, to sustain tbe defense under this statute. It affirmatively appears from tbe uncontradicted evidence tbat tbe swimming pool was repaired and thereby made reasonably fit for tbe purpose for wbicb tbe property was leased at an expense of $50. Tbe annual rent stipulated in tbe lease was $1,300. Tbe statute provides tbat a lessee may surrender tbe leased property and be thereby discharged from all rent accruing thereafter, if tbe property is damaged to such an extent tbat it cannot be made reasonably fit for tbe purpose for wbicb it was hired, except at an expense exceeding one year’s rent of tbe premises.

Defendants, in their answer allege, in effect, tbat plaintiff failed to repair tbe swimming pool within a reasonable time, and tbat for this reason tbe lessee surrendered tbe property on Saturday succeeding tbe Thursday night on which tbe wall cracked. In bis reply, plaintiff alleges tbat be caused tbe repairs to be made promptly, in accordance with bis agreement with tbe lessee. All tbe evidence shows tbat tbe repairs were made on Monday, after tbe agreement was made on Friday afternoon. Tbe 4th issue arises upon tbe pleadings and was properly submitted to tbe jury. We find no error in tbe instructions of tbe court upon this issue. Tbe jury found tbat plaintiff repaired tbe swimming pool within a reasonable time. Upon this finding, tbe court properly held tbat tbe lease bad not terminated, as contended by defendants. It is clear from tbe pleadings and from tbe evidence tbat defendants relied upon tbe failure of plaintiff to repair within a reasonable time, and not upon tbe termination of tbe lease by tbe crack in tbe wall as a defense to plaintiff’s recovery. It might well have been contended under tbe facts of this case, tbat tbe damage resulting from tbe crack in tbe wall, wbicb was repaired in a few days, at a cost of $50, was not such a destruction of tbe building as, under tbe stipulation, terminated tbe lease. See *Wall v. Hinds,*4 Gray (Mass.), 256, 64 Am. Dec., 64, cited in 16 R. C. L., p. 963, sec. 473, n 4.

Tbe answer to tbe 4th issue is determinative of plaintiff’s right to recover in this action. Tbe answer to tbe 3rd issue, under tbe evidence and tbe charge of tbe court, must be construed, for tbe purpose of tbe judgment, together with tbe answer to tbe 4th issue. Tbe judgment is affirmed. We find

No error.