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CHESTER K. BURNHAM & KENWORTH TRUCK SALES, INC. v. MAURICE H. JOSEPH & FISHERMAN'S WHARF RESTAURANT OF MISS.

FEBRUARY 05, 1986

CHESTER K. BURNHAM & KENWORTH TRUCK SALES, INC.
v.
MAURICE H. JOSEPH & FISHERMAN'S WHARF RESTAURANT OF MISS., INC.



BEFORE ROY NOBLE LEE, DAN LEE AND PRATHER

DAN LEE, JUSTICE, FOR THE COURT:

On January 10, 1983, Maurice Joseph and Fisherman's Wharf Restaurant of Mississippi, Inc. (hereinafter "Joseph") filed - and later amended - a complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi, against Chester K. Burnham and Kenworth Truck Sales, Inc. (hereinafter "Burnham"). The complaint alleged an indebtedness to Joseph resulting from breach of a lease contract.

On January 18, 1983, Burnham answered and filed a counterclaim asserting that Joseph had failed to make roof repairs on the leased premises and that Burnham was entitled to an award against Joseph as a setoff against any rent owed.

 On August 11, 1983, the case went to trial before a jury empanelled in the Circuit Court of the First Judicial District of Hinds County. After both sides rested, counsel for Joseph moved for a directed verdict on the counterclaim. The court sustained that motion; the jury returned a directed verdict for the plaintiffs and assessed damages at $27,080.18.

 Aggrieved of the lower court's judgment, Burnham and Kenworth appeal and make the following assignments of error:

 1. The lower court erred in granting the plaintiff's motion for a directed verdict, denying the defendant's jury Instruction No. D-2 and D-3 and overruling the motion for the entry of a judgment n.o.v., to alter or amend the judgment or for a new trial.

 2. The jury verdict was excessive and not based on the evidence.

 In late 1974 or early 1975, Kenworth Truck Sales (with Chester Burnham, President and majority stockholder) entered into a lease authorizing occupancy of the property which is the subject of this litigation. At that time, the property was owned by Mr. Bill Cook (or one of his companies, Western Materials). Several years later, Maurice Joseph purchased the premises; Burnham continued to lease the property from them. One pertinent paragraph of the lease states:

 No. 7. Repairs. Lessors agree to maintain the roof and structural portion of the outside walls of the building now and hereafter located on the leased premises. All other maintenance and necessary repairs, including repainting of the interior and exterior of

 the buildings as required, shall be furnished by lessess at their expense. The leased premises shall be returned to lessors on termination of this lease in as good condition as when received, reasonable and ordinary wear and tear excepted. For the duration of this lease, lessees shall keep the leased premises in a slightly (sic) condition, and on termination of the lease shall promptly make such repairs as may be necessary to comply with this obligation or pay the reasonable expenses of so doing.

 The lease was last renewed on March 12, 1982, for a term of one year commencing on February 1, 1982 and expiring at midnight, January 31, 1983.

 Under the terms of the lease renewal agreement, Burnham agreed to pay the sum of $6,025.00 as monthly rent on the first of each month. Additionally, he agreed to pay $742.37 and $266.75 on the first of every month to be applied to taxes and insurance respectively.

 Burnham withheld payments for the months of December, 1982, and January, 1983, as a result of Joseph's failure to make necessary repairs to the roofs of the leased buildings. Thereafter, Joseph filed an action in the County Court to obtain possession of the premises. The County Court ruled that Burnham was indebted to Joseph for past due rent and that Joseph was entitled to immediate possession of the leased premises. The sheriff of Hinds County evicted Burnham from the property.

 Joseph subsequently instituted an action in Circuit Court to recover the sum of $14,067.24 for past due monthly rentals, taxes and insurance. He also demanded, in an amended complaint, damages for the cost of ...


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