B-119301, APR. 16, 1956

B-119301: Apr 16, 1956

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000 SQUARE FEET OF STORAGE SPACE WAS OCCUPIED BY THE PUBLIC PRINTER UNDER LEASE GS-05B-384. THE AREA DIRECTLY AFFECTED BY THE COLLAPSED ROOF IS REPORTED TO HAVE CONTAINED APPROXIMATELY 9. IT IS REPORTED THAT THE WATER. ALL OTHER UTILITIES WERE NOT AFFECTED BY THE COLLAPSE. EXCEPT THE ALARM SYSTEM WHICH IS STATED TO HAVE BEEN COMPLETELY KNOCKED OUT. IN SUPPORT OF SUCH REQUEST HE POINTED OUT THAT APPROXIMATELY ONE-HALF OF THE 1 MILLION POUNDS OF PAPER STORED IN THE BUILDING AT THE TIME OF THE ACCIDENT WAS LOCATED IN AREA "D" DIRECTLY UNDER THE COLLAPSED ROOF. STATED THAT AREA "D" WHICH CONTAINED THE ONLY SATISFACTORY TRUCK-DOCK FOR LOADING AND UNLOADING WAS UNSAFE FOR USE. HE STATED THAT VERY LITTLE PAPER WENT OUT BY THE RAILROAD SIDING WHICH WAS ON THE FAR SIDE OF THE BUILDING AND NOT AFFECTED BY THE ACCIDENT.

B-119301, APR. 16, 1956

TO HONORABLE FRANKLIN O. FLOETE, ADMINISTRATOR, GENERAL SERVICES, ADMINISTRATION:

BY LETTER OF FEBRUARY 23, 1956, YOUR PREDECESSOR REQUESTED OUR DECISION CONCERNING THE GOVERNMENT'S LIABILITY FOR RENT CLAIMED BY THE JAY-BEE WAREHOUSE CO., FOR THE ONE-STORY, GARAGE-TYPE WAREHOUSE BUILDING KNOWN AS 600 WEST 41ST STREET, CHICAGO, ILLINOIS, FOLLOWING COLLAPSE OF PART OF THE ROOF AND ONE WALL ON JUNE 7, 1953.

THE WAREHOUSE CONTAINING APPROXIMATELY 2,000 SQUARE FEET OF OFFICE SPACE AND 48,000 SQUARE FEET OF STORAGE SPACE WAS OCCUPIED BY THE PUBLIC PRINTER UNDER LEASE GS-05B-384, DATED DECEMBER 27, 1950, AS AMENDED. THE LEASE PROVIDES FOR A FIVE-YEAR TERM BEGINNING JANUARY 8, 1951, AT AN ANNUAL RENTAL OF $37,100. PARAGRAPH 9 CONTAINS THE USUAL PROVISION OBLIGATING THE LESSOR TO MAINTAIN THE BUILDING. PARAGRAPH 18 REQUIRES THE LESSOR TO PLACE THE BUILDING IN FIRST-CLASS CONDITION BEFORE THE GOVERNMENT ASSUMES THE OBLIGATION FOR MAINTENANCE OF THE INTERIOR FACILITIES. PARAGRAPH 19 REQUIRES THE LESSOR TO MAINTAIN THE EXTERIOR OF THE BUILDING. PARAGRAPH 10 PROVIDES THAT "IN CASE OF PARTIAL DESTRUCTION OR DAMAGE, SO AS TO RENDER THE PREMISES UNTENANTABLE, EITHER PARTY MAY TERMINATE THE LEASE BY GIVING WRITTEN NOTICE TO THE OTHER WITHIN FIFTEEN DAYS THEREAFTER, AND IF SO TERMINATED NO RENT SHALL ACCRUE TO THE LESSOR AFTER SUCH PARTIAL DESTRUCTION OR DAMAGE.'

ABOUT 8:45 P.M., JUNE 7, 1953, THE ROOF OVER AREA "D" COLLAPSED. THE AREA DIRECTLY AFFECTED BY THE COLLAPSED ROOF IS REPORTED TO HAVE CONTAINED APPROXIMATELY 9,172 SQUARE FEET OF SPACE OR SLIGHTLY IN EXCESS OF 17 PERCENT OF THE ENTIRE AREA OF THE LEASED SPACE. IT IS REPORTED THAT THE WATER, HEATING, AND ALL OTHER UTILITIES WERE NOT AFFECTED BY THE COLLAPSE, EXCEPT THE ALARM SYSTEM WHICH IS STATED TO HAVE BEEN COMPLETELY KNOCKED OUT. IMMEDIATELY AFTER THE ACCIDENT THE DIRECTOR OF PURCHASES, GOVERNMENT PRINTING OFFICE, REQUESTED YOUR REGIONAL OFFICE TO TERMINATE THE LEASE. IN SUPPORT OF SUCH REQUEST HE POINTED OUT THAT APPROXIMATELY ONE-HALF OF THE 1 MILLION POUNDS OF PAPER STORED IN THE BUILDING AT THE TIME OF THE ACCIDENT WAS LOCATED IN AREA "D" DIRECTLY UNDER THE COLLAPSED ROOF. STATED THAT AREA "D" WHICH CONTAINED THE ONLY SATISFACTORY TRUCK-DOCK FOR LOADING AND UNLOADING WAS UNSAFE FOR USE. HE STATED THAT VERY LITTLE PAPER WENT OUT BY THE RAILROAD SIDING WHICH WAS ON THE FAR SIDE OF THE BUILDING AND NOT AFFECTED BY THE ACCIDENT. HE STATED FURTHER THAT AREA "E" WHICH WAS USED ONLY FOR STORAGE OF PAPER NOT REGARDED AS A FAST MOVING TYPE. HE STATED, IN EFFECT, THAT THE USE OF THE OFFICE SPACE WAS DIRECTLY RELATED TO THE STORAGE AND WAREHOUSING ACTIVITIES AND THAT WITHOUT THE STORAGE SPACE THE OFFICE SPACE WOULD SERVE NO USEFUL PURPOSE. FOR THE FOREGOING REASONS HE STATED THAT THE GOVERNMENT PRINTING OFFICE COULD NOT CONTINUE OPERATION OF THE BUILDING SAFELY OR ECONOMICALLY. HE CONTENDED THAT THE ACCIDENT WAS CAUSED BY THE LESSOR'S FAILURE TO PROPERLY MAINTAIN THE LEASED PREMISES WHICH FAILURE HE ASSERTED CONSTITUTED A CONSTRUCTIVE EVICTION. ON THE BASIS OF THE FOREGOING AND INSPECTION REPORTS BY GOVERNMENT ENGINEERS TO THE EFFECT THAT THE AREA UNDER THE COLLAPSED ROOF, TOGETHER WITH AN ADDITIONAL AREA OF 7,000 TO 10,000 SQUARE FEET OF SPACE, WAS UNSAFE, YOUR REGIONAL COUNSEL CONCLUDED THAT THE GOVERNMENT WAS AUTHORIZED TO TERMINATE THE LEASE PURSUANT TO PARAGRAPH 10. HE NOTIFIED THE LESSOR ACCORDINGLY BY LETTER OF JUNE 12, 1953, IT BEING STATED THEREIN THAT TERMINATION OF THE LEASE WOULD BECOME EFFECTIVE AS OF JUNE 7, 1953.

THE RECORD INDICATES THAT THE GOVERNMENT PRINTING OFFICE VACATED THE PREMISES ON JUNE 12, 1953, AT WHICH TIME ALL PAPER AND CARTONS WERE REMOVED, EXCEPT THE PAPER AND CARTONS LOCATED IN THE DAMAGED AREA, TOGETHER WITH A LARGE QUANTITY OF SKIDS AND SKID TOPS WHICH THE GOVERNMENT PRINTING OFFICE UNSUCCESSFULLY ENDEAVORED TO TURN OVER TO THE LESSOR AFTER FAILING TO DISPOSE OF SAME THROUGH THE USUAL CHANNELS. ON JUNE 16, 1953, THE LESSOR WAS NOTIFIED THAT THE BALANCE OF THE PAPER AND CARTONS REMAINING IN THE BUILDING COULD NOT BE REMOVED BECAUSE OF THE DAMAGED CONDITION OF THE BUILDING AND THAT THE GOVERNMENT WOULD NOT ACCEPT LIABILITY FOR ANY STORAGE COSTS OR ANY COSTS FOR REMOVAL OF THE PAPER FROM THE WRECKAGE IN THE ABSENCE OF A PRIOR WRITTEN AGREEMENT. THE KEYS WERE TURNED OVER TO THE LESSOR ON JULY 8, 1953, AND ON THE SAME DATE THE LESSOR WAS PAID $749.39 AS THE BALANCE OF RENTAL CONCLUDED TO BE DUE UNDER THE LEASE. THE RECORD INDICATES THAT BECAUSE OF THE LESSOR'S FAILURE TO REMOVE THE DEBRIS AND THE POSSIBILITY THAT THE PAPER MIGHT HAVE BEEN DAMAGED TO THE EXTENT IT MIGHT NO LONGER BE SUITABLE FOR GOVERNMENT USE, THE GOVERNMENT PRINTING OFFICE CONCLUDED THAT REMOVAL OF THE PAPER FOR SALVAGE PURPOSES WOULD BE UNECONOMICAL. THEREFORE, IT DECIDED TO ABANDON ALL GOVERNMENT PROPERTY REMAINING IN THE BUILDING AND ON SEPTEMBER 15, 1953, IT FILED A CLAIM AGAINST THE LESSER FOR $58,755.74 AS THE ESTIMATED VALUE OF THE PAPER AND CARTONS REMAINING IN THE BUILDING AT THAT TIME. HOWEVER, FOLLOWING OUR LETTER OF MARCH 29, 1954, B-119301 TO THE PUBLIC PRINTER, POINTING OUT THE LEGAL EFFECT OF ABANDONMENT OF THE PAPER AND SUGGESTING REMOVAL OF SAME, IT APPEARS THAT SALVAGE OPERATIONS WERE STARTED ON APRIL 5, 1954, AND COMPLETED ON APRIL 5, 1954, EXCEPT FORONE CARLOAD OF PAPER LEFT IN CUSTODY OF THE LESSOR FOR LEADING, BANDING, AND SHIPPING UNDER AN INFORMAL ARRANGEMENT WITH THE GOVERNMENT PRINTING OFFICE. SHIPMENT APPEARS TO HAVE BEEN MADE ON OR ABOUT APRIL 13, 1954. THE CLAIM AGAINST THE LESSOR WAS SUBSEQUENTLY REDUCED TO $1,425.98 LESS CERTAIN CREDITS, LEAVING A NET INDEBTEDNESS OF $1,086.70 AND UPON THE LESSOR'S FAILURE TO MAKE RESTITUTION COURT ACTION WAS INSTITUTED TO RECOVER THAT AMOUNT AND IS NOW PENDING.

FROM THE TIME OF THE ACCIDENT THE LESSOR CONSISTENTLY HAS CONTENDED THAT THE DAMAGE DID NOT RENDER THE PREMISES UNTENANTABLE WITHIN THE MEANING OF PARAGRAPH 10 OF THE LEASE AND THAT THE GOVERNMENT COULD HAVE REMOVED THE PAPER STOCK REMAINING IN THE BUILDING WITHOUT ANY DANGER AS EVIDENCED BY THE FACT THAT HEAVY EQUIPMENT WAS USED WITHOUT MISHAP IN REMOVING THE PAPER FROM THE AREA NOT EFFECTED BY THE COLLAPSE. IN LETTER OF JUNE 17, 1953, TO YOUR CHICAGO REGIONAL OFFICE THE LESSOR'S ATTORNEY STATED THAT REPUTABLE STATE-LICENSED ENGINEERS WHO EXAMINED THE BUILDING AFTER THE ACCIDENT REPORTED THAT AN AREA OF ONLY 10,000 SQUARE FEET WAS AFFECTED, LEAVING AN AREA OF 38,000 SQUARE FEET OF STORAGE SPACE IN A TENANTABLE CONDITION, INCLUDING THE TRUCK DOCK AREA TOGETHER WITH THE RAILROAD SIDING AND DOCK. AS TO THE CAUSE OF THE ACCIDENT HE SUBMITTED STATEMENTS BY AN ARCHITECT TO THE EFFECT THAT THE DAMAGE WAS CAUSED BY HIGH WIND PRESSURES WHICH PREVAILED ON JUNE 7, 1953, AND IMMEDIATELY PRIOR THERETO. ALSO, HE POINTED OUT THAT GOVERNMENT REPRESENTATIVES AND ENGINEERS MADE ATHOROUGH CHECK OF THE BUILDING PRIOR TO AND DURING THE GOVERNMENT'S OCCUPANCY WITHOUT RAISING ANY QUESTION AS TO THE CONDITION OR SAFETY OF THE BUILDING. THE ATTORNEY SUBMITTED WEATHER BUREAU DATA FOR THE MONTH OF JUNE 1953, SHOWING THAT WHILE THE WIND AVERAGED SLIGHTLY LESS THAN 9.7 M.P.H. EXPECTED FOR THAT MONTH THERE WAS RECORDED ON JUNE 4, 1953, A FASTEST MILE OF 50 M.P.H. FOR THE PURPOSE OF SHOWING THAT THE ROOF WAS PROPERLY MAINTAINED DURING THE GOVERNMENT'S TENURE AND IMMEDIATELY PRIOR THERETO HE SUBMITTED PAID BILLS SHOWING EXPENDITURES TOTALING $7,345.31 FOR ROOF REPAIRS TOGETHER WITH AN AFFIDAVIT BY A ROOFING COMPANY ATTESTING TO VARIOUS ROOF REPAIRS AND INSPECTIONS OF THE ROOF MADE BY THE AFFIANT INCLUDING NEW ROOFING, GUTTERS AND DOWNSPOUT INSTALLED ON JUNE 10, 1950.

THE RECORD SHOWS THAT AS SOON AS THE GOVERNMENT NOTIFIED THE LESSEE THAT IT WAS TERMINATING THE LEASE THE LESSOR ATTEMPTED TO MITIGATE THE DAMAGES BY ADVERTISING THE PREMISES FOR RENT. WHEN EFFORTS IN THIS DIRECTION WERE UNSUCCESSFUL THE LESSOR STARTED ARRANGEMENTS TO OCCUPY THE BUILDING ITSELF. IT IS REPORTED THAT THE LESSOR OCCUPIED 40 PERCENT OF THE OFFICE SPACE SHORTLY AFTER NOVEMBER 1, 1953. IT LEASED A SMALL OFFICE OF APPROXIMATELY 20 FEET SQUARE TO ANOTHER TENANT FOR THE YEAR BEGINNING JANUARY 1, 1954, AND THEREAFTER THE LESSOR BEGAN OCCUPANCY OF OTHER PARTS OF THE BUILDING PROGRESSIVELY INCREASING SUCH OCCUPANCY UNTIL JUNE 1, 1954, WHEN IT OR ITS TENANTS OCCUPIED ALL OF THE LEASED SPACE EXCEPT THE DAMAGED AREA WHICH THE RECORD INDICATES HAD NOT BEEN REPAIRED AS OF JUNE 11, 1955.

THE LESSOR'S APPEAL FROM THE TERMINATION OF THE LEASE WAS CONSIDERED BY THE BOARD OF REVIEW, GENERAL SERVICES ADMINISTRATION. THE BOARD DISAGREED WITH THE ORIGINAL ACTION TAKEN BY THE REGIONAL DIRECTOR AND SUBMITTED RECOMMENDATIONS IN PERTINENT PART, AS FOLLOWS:

"1. THAT RENT FOR THE PERIOD FROM JUNE 1, 1953 TO JUNE 1, 1954, ON WHICH LAST MENTIONED DATE THE APPELLANT ENTERED INTO FULL POSSESSION OF THE LEASED PREMISES, BE ADJUSTED BETWEEN THE APPELLANT AND THE GOVERNMENT.

"2. THAT CREDIT BE GIVEN TO THE GOVERNMENT FOR THE AMOUNT PAID BY IT TO THE APPELLANT ON JUNE 12, 1953, IN THE SUM OF $749.39.

"3. THAT THE MONTHLY RENTAL BE REDUCED BY THE VALUE OF THE SPACE OCCUPIED BY THE APPELLANT FROM THE DATE OF ITS ENTRY UPON THE PREMISES TO THE FIRST DAY OF JUNE 1954.

"4. THAT THE CLAIM OF THE GOVERNMENT FOR DAMAGES SHALL BE TAKEN INTO CONSIDERATION WHEN FIXING THE AMOUNT OF RENTAL DUE UNDER THE SUBJECT LEASE SO THAT FULL PAYMENT OF SAID CLAIM IS THEREBY EFFECTED.'

THE PRIMARY QUESTION FOR DETERMINATION IS WHETHER THE GOVERNMENT LEGALLY WAS JUSTIFIED IN TERMINATING THE LEASE EFFECTIVE AS OF JUNE 7, 1953, THE DATE OF THE ACCIDENT. SINCE PARAGRAPH 10 OF THE LEASE AUTHORIZES TERMINATION BY EITHER PARTY IN THE EVENT THAT THE PREMISES ARE RENDERED UNTENANTABLE BY PARTIAL DESTRUCTION, THE ANSWER TO THAT QUESTION NECESSARILY DEPENDS UPON A DETERMINATION WHETHER THE PREMISES PROPERLY MAY BE REGARDED AS UNTENANTABLE ON THE DATE OF TERMINATION. AS INDICATED IN THE BOARD'S REPORT SUBMITTED WITH THE LETTER OF FEBRUARY 23, 1956, IT HAS BEEN HELD THAT A BUILDING BECOMES UNTENANTABLE UNDER SUCH A PROVISION WHEN IT IS SO DAMAGED AS TO BE UNFIT FOR THE TENANT TO CARRY ON ITS BUSINESS AND CANNOT BE RESTORED TO A FIT CONDITION BY REPAIRS WITHOUT UNREASONABLE INTERRUPTION OF THE TENANT'S BUSINESS. SCHULTE, INC. V. AMERICAN REALTY CORPORATION, 152 N.E. 233; TEDSTROM V. PUDDEPHATT, 137 S.W. 816; TIFFANY ON LANDLORD AND TENANT, VOL. I, PAGE 1203. AS POINTED OUT BY THE COURT IN THE SCHULTE CASE, IT IS A QUESTION OF FACT WHETHER THE PREMISES ARE RENDERED UNTENANTABLE WITHIN THE MEANING OF SUCH A COVENANT, THERE BEING NECESSARILY FOR CONSIDERATION IN SUCH CASES THE NATURE OF THE TENANT'S BUSINESS AND THE PURPOSE FOR WHICH THE PREMISES WERE LEASED.

IN THE PRESENT CASE THE BOARD OF REVIEW, AFTER INSPECTING THE PREMISES, FOUND THAT WHILE APPROXIMATELY 20 PERCENT OF THE STORAGE SPACE WAS AFFECTED BY THE COLLAPSE AND THE ONE DAMAGED WALL, THE REMAINDER OF THE SPACE WAS SATISFACTORY FOR USE AND OCCUPANCY FOR THE PURPOSES SPECIFIED IN THE LEASE AND THAT IT COULD HAVE BEEN SAFELY USED FOR SUCH PURPOSES AFTER THE ACCIDENT. SUCH FINDINGS ARE CONSISTENT WITH THE STATEMENT IN THE MEMORANDUM OF JUNE 8, 1953, BY MR. G. VAN VLECK ON PAGE 8 OF THE REPORT TO THE EFFECT THAT MR. HEARN OF THE GOVERNMENT PRINTING OFFICE STATED THAT HE WOULD HAVE BEEN ABLE TO OPERATE OUT OF THE BALANCE OF THE WAREHOUSE EXCEPT THAT HE DID NOT HAVE ANY BOXES TO SEND OUT ALONG WITH THE ORDERS WHICH WOULD HAVE HAMPERED HIS OPERATIONS TO SOME EXTENT. ALSO, IN SUPPORT OF THE ABOVE FINDING THE BOARD POINTS OUT THAT SINCE THE PURPOSE FOR WHICH THE BUILDING WAS LEASED IS DESCRIBED IN PARAGRAPH 2 OF THE LEASE AS "OFFICE QUARTERS, STORAGE SPACE, AND USES INCIDENTAL THERETO," IT MUST BE CONCEDED THAT OTHER GOVERNMENT AGENCIES COULD HAVE USED THE AVAILABLE SPACE FOR SUCH PURPOSES. ROYCE, INC. V. UNITED STATES, 130 C. CLS. 115. ON JUNE 11, 1955, WHEN THE PREMISES WERE INSPECTED BY A MEMBER OF THE BOARD HE FOUND THAT THE ENTIRE PREMISES WERE OCCUPIED BY THE LESSOR AND TWO TENANTS EXCEPT FOR THE AREA AFFECTED BY THE COLLAPSE WHICH HAD NOT BEEN REPAIRED. INDICATIVE OF THE FACT THAT THE BUILDING WAS TENANTABLE AFTER THE ACCIDENT, THE BOARD MEMBER FOUND LARGE QUANTITIES OF NEWS PRINT BELONGING TO OTHER TENANTS STORED IN AREA "B.' WHILE THERE IS NO FINDING BY THE BOARD AS TO WHETHER THE BUILDING COULD HAVE BEEN REPAIRED WITHOUT ANY UNREASONABLE DELAY OR INTERRUPTION IN THE GOVERNMENT'S BUSINESS, THE LESSOR INDICATES THAT SUCH REPAIRS COULD HAVE BEEN ACCOMPLISHED WITHOUT UNDUE DELAY HAD THE GOVERNMENT REQUESTED IT TO DO SO. CONSIDERING THE TYPE OF BUILDING, A ONE-STORY BRICK WAREHOUSE WITH TAR PAPER AND GRAVEL ROOF, THERE APPEARS NO REASON TO DISAGREE WITH THE LESSOR'S CONCLUSION. ACCORDINGLY, ON THE BASIS OF THE BOARD'S FINDINGS, WE MUST CONCLUDE THAT THERE WAS NO LEGAL JUSTIFICATION FOR TERMINATING THE LEASE UNDER PARAGRAPH 10 AND THAT THEREFORE, THE LETTER OF JUNE 12, 1953, NOTIFYING THE LESSOR OF SUCH TERMINATION EFFECTIVE AS OF JUNE 7, 1953, DID NOT OPERATE TO RELIEVE THE GOVERNMENT FROM LIABILITY FOR RENTAL ACCRUING UNDER THE LEASE, THE GOVERNMENT'S LIABILITY, OF COURSE, BEING SUBJECT TO CREDITS FOR OCCUPANCY BY THE LESSOR AND ITS TENANTS ON A PROGRESSIVE BASIS AS DETERMINED BY YOUR ADMINISTRATION. EVEN IF THE CIRCUMSTANCES WERE SUCH AS TO JUSTIFY TERMINATION OF THE LEASE THE FAILURE OF THE GOVERNMENT TO REMOVE THE PAPER REMAINING IN THE BUILDING WITHIN A REASONABLE TIME AFTER THE LESSOR'S NOTICE OF JANUARY 14, 1954, WOULD RENDER THE TERMINATION NOTICE OF JUNE 12, 1953, INEFFECTIVE. AS STATED BY THE COURT OF CLAIMS IN SPOFFORD V. UNITED STATES, 32 C.CLS. 452, 459, A TERMINATION NOTICE WITHOUT ACTION IN ACCORD THEREWITH "WOULD BE VALUELESS.' SEE, ALSO, MCKNIGHT V. UNITED STATES, 64 C. CLS. 291. WHETHER LEAVING PROPERTY ON LEASED PREMISES, OTHERWISE VACATED AT THE END OF THE LEASE TERM, CONSTITUTES A HOLDING OVER DEPENDS ON THE CIRCUMSTANCES OF THE PARTICULAR CASE. 35 C.J. 10033; 51 C.J.S. LANDLORD AND TENANT, SEC. 75. THE RECORD SHOWS THAT THE PAPER IN THE DAMAGED AREA WAS NOT REMOVED UNTIL APPROXIMATELY FOUR MONTHS AFTER THE LESSOR NOTIFIED THE GOVERNMENT PRINTING OFFICE THAT THE PAPER WAS AVAILABLE FOR DISPOSAL. ALSO, THE RECORD SHOWS THAT ON JUNE 11, 1955, WHEN THE PREMISES WERE INSPECTED BY THE BOARD MEMBER THERE WERE STILL A LARGE NUMBER OF SKIDS IN AREA "D" BELONGING TO THE GOVERNMENT. THESE CIRCUMSTANCES REASONABLY MAY BE VIEWED AS A FAILURE TO SURRENDER COMPLETE POSSESSION OF THE PREMISES SO AS TO AVOID LIABILITY FOR RENT.

THE PUBLIC BUILDINGS SERVICE HAS CONTENDED, IN EFFECT, THAT THERE WAS A BREACH OF THE LESSOR'S MAINTENANCE OBLIGATION UNDER THE LEASE, THUS CONSTITUTING A CONSTRUCTIVE EVICTION AND RELIEVING THE GOVERNMENT FROM LIABILITY FOR RENTAL. THE BOARD FOUND THAT THE RECORD FAILED TO ESTABLISH ANY PROOF THAT THE LESSOR INTENTIONALLY COMMITTED ANY ACT OR WAS GUILTY OF AN OMISSION OF DUTY SUCH AS WOULD INDICATE AN INTENTION ON ITS PART TO DEPRIVE THE GOVERNMENT OF THE BENEFICIAL USE AND ENJOYMENT OF THE LEASED PREMISES. ALSO, THE BOARD COULD FIND NO EVIDENCE WHICH WOULD WARRANT THE CONCLUSION THAT THE LESSOR FAILED TO MAINTAIN THE LEASED PREMISES IN GOOD REPAIR AND TENANTABLE CONDITION IN CONTRAVENTION OF ITS MAINTENANCE OBLIGATION UNDER PARAGRAPH 9 OF THE LEASE. IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT THE GOVERNMENT MAY NOT BE RELIEVED FROM LIABILITY ON THE THEORY OF A CONSTRUCTIVE EVICTION, PARTICULARLY SINCE THE PREMISES WERE NOT VACATED WITHIN A REASONABLE TIME AND SINCE THE LESSOR WAS AFFORDED NO OPPORTUNITY TO MAKE THE REPAIRS BEFORE THE TERMINATION NOTICE. HOOVER V. WUKASCH, 274 S.W.2D 458; PIERCE V. NASH, 272 P.2D 938; ABBOTT V. MCCOY, 254 P.2D 997; STILLMAN V. YOUMANS, 266 S.W.2D 913; 32 AM.JR. LANDLORD AND TENANT, SECS. 250 AND 251; 52 C.J.S. SEC. 457.

IN VIEW OF THE FOREGOING, WE AGREE WITH THE ABOVE RECOMMENDATIONS OF YOUR BOARD OF REVIEW. WHEN THERE SHALL HAVE BEEN COMPLIANCE WITH THESE RECOMMENDATIONS, THE LESSOR'S CLAIM SHOULD BE FORWARDED TO THE CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, FOR SETTLEMENT AND SET-OFF OF THE GOVERNMENT'S CLAIM NOW PENDING IN COURT, TOGETHER WITH TWO COPIES OF A GENERAL RELEASE TO BE SIGNED BY THE LESSOR RELEASING THE GOVERNMENT FROM ALL LIABILITY WHATSOEVER ACCRUING UNDER THE LEASE. IT IS REPORTED THAT THE TRIAL IN THE COURT ACTION HAS BEEN SET FOR SEPTEMBER 25, 1956, AND THE DEPARTMENT OF JUSTICE HAS ASKED THAT IT BE ADVISED OF THE DISPOSITION OF THE PRESENT MATTER IN ORDER THAT THE UNITED STATES ATTORNEY MAY BE NOTIFIED ACCORDINGLY BEFORE THAT DATE. THEREFORE, IT IS REQUESTED THAT YOUR ACTION IN THE MATTER AS ABOVE INDICATED BE ACCOMPLISHED AS EXPEDITIOUSLY AS POSSIBLE.