« ForrigeFortsett »
Messrs. R. T. Smith and R. McPhail been previously promised and agreed. The Smith for appellee.
second count alleges, in substance, that the For the arguments, see Stenberg v. Willcox house was in an unsafe and dangerous condi(Tenn.) ante, 615.
tion when plaintiff rented it from defendant,
and that defendant and bis agent knew of this Wilkes, J., delivered the opinion of the fact and concealed it from her, and that it was court:
not known to ber. The pleas were, in effect, This is an action for damages for personal a general denial of the truth of the matters alinjuries sustained by the plaintiff while occu- leged, pot guilty, and contributory negligence. pying the house of defendant, as his tenant. There was what is termed a “rental contract,” The cause was heard before the court and a signed by the parties, in the words and figures jury, and there was a verdict for the defend- following: apt, and judgment against plaintiff for costs,
Nashville, Sept. 28, 1892. and she has appealed and assigned errors. A. V. S. Lindsley, agent, has ihis day rented
The plaintiff, with several members of her to M. P. Hines and wife, Lucy S. Hines, the family, and boarders in the house, was in two-story dwelling house on the S. W. corner jured by the falling of a defective and unsafe of Church and McLemore streets for one year back porch. There are two counts in the dec- from Oct. 1, 1892, to Oct. 1, 1893, for $50.00 laration, the first alleging, in substance, that per month, payable monthly in advance. To defendant contracted that the house should be secure payment of said sum, said M. P. Hines put in safe and tenantable condition before and his wife have this day executed twelve the rental contract was made, and that at the notes, payable to A. V. S. Lindsley, agent, time the contract was closed the defendant's falling due, one Oct. 1, 1892, and one on the agent represented and stated that it had been first of each month thereafter, till the twelve put in a safe and tenantable condition as had notes are paid. M. P. Hines and wife further
For the reason that the landlord is not respon- , repair, unless he has agreed in the lease to make sible for the condition of the leased premises a repairs. subtenant's remedy is against his lessor, and not A complaint alleging that plaintiff was injured against the owner, unless the premises are such a by a fall of certain stairs attached to defendant's nuisance that the owner would be liable to the building which plaintiff as tenant was entitled to public. Quay v. Lucas, 25 Mo. App. 4.
use, and that it was the duty of defendant as Upon the general question of the landlord's lia- owner to keep the stairs in good condition and rebility to the tenant's guests, see note to McConnell pair, does not state a cause of action, since, the v. Lemley (La. Ann.) ante, 609,
premises not being occupied by defendant but by
the tenants, the duty of keeping the stairs in good There are no implied covenants.
repair presumptively rested on them, and not on
him, in the absence of a special agreement by him The court does not imply any covenants in a
to assume that duty. Corey v. Mann, 14 How. Pr. lease. If the landlord does not expressly under
163. take to make and keep the premises safe he is not
A landlord is not bound to repair unless upon charged with that duty.
covenant to do so, and he is not liable for an inIf the tenant wishes the landlord to take the re- jury arising from a failure on his part to repair, sponsibility of the sewer being sufficient, that pro- whether it result to the tenant's goods or to his vision must be inserted in the lease. Wilkinson v. Clauzon, 29 Minn. 91.
person. Ward v. Fagin, 101 Mo. 669, 10 L. R. A. 147,
Reversing 28 Mo. App. 116. The leasing of a house for a private residence
In Willson v. Treadwell, 81 Cal. 58, where the indoes not imply a covenant that it is reasonably fit jury was to a servant of the tenant, the court says for habitation, and the owner will not be liable if the rule that the landlord is not liable to strangers the tenant's family is made sick hy defective for a failure to repair applies with equal force to drains therein. Foster v. Peyser, 9 Cush. 243, 57 the tenant and his employees. Am. Dec. 13.
The landlord is not liable for injuries caused by In Robbins v. Jones, 15 C. B. N. S. 221, the court the premises getting out of repair during the term says the tenant's remedy, if any, is upon his con- of the lease. Libbey v. Tolsord, 48 Me. 316, 77 Am. tract.
Dec. 229. In case a building falls and injures the tenant's
A landlord is not liable for a defect in a drain property the landlord will not be liable for the in
which in the course of a tenancy at will is disjury, although he has covenanted to make neces. covered to him, nor for failing to disclose it to the sary repairs to the building, since such covenant tenant, if the defect is unknown to the latter. does not include an undertaking that the building Bertie v. Flagg, 161 Mass. 504. shall not give way. Leavitt v. Fletcher, 10 Allen,
The owner who has not undertaken to repair is 119.
not under any obligation to take measures to preIn Frank v. Conradi, 50 N. J. L. 23, where the tenant was injured by the giving way of a rail on excavation made on the property next to it, and
vent the falling of the building by reason of an premises which the landlord had undertaken to repair, the court says that the covenant did not mean caused by such fall. Brewster v. DeFremery, 33
he will not be liable for injuries to the tenant that the premises would never be out of repair,
Cal. 341. but that the duty imposed upon the landlord was
In the absence of an undertaking to make reto properly inspect the premises and make such repairs as a due inspection would show to be neces. pairs, the landlord is not liable for any hurt or sary. But this cannot be stretched so as to include damage that may accrue to the tenant or to any
member of bis family through his negligence in an obligation to repair what a reasonable exami- failing to perform such a supposed duty. Little v. nation would not disclose to be in need of repair. Macadaras, 29 Mo. App. 332, 38 Mo. App. 187.
In Cleves v. Willoughby, 7 Hill, 83, the court says No action for nonrepair.
the maxim caveat emptor applies to the transfer of As part of the rule that there are no implied all property, and the purchaser takes the risk of its covenants the landlord is not liable for failure to quality and condition, unless he protects bimself agree and bind themselves to keep said prem- salient features which must determine the ises clean and in a sanitary condition, satisfac- decision of the case, leaving many others untory to the city authorities. Should any of the touched. above potes remain due and unpaid, A. V. S. The trial judge excluded from the jury all Lindsley, agent, reserves the right to re-enter evidence offered by plaintiff to show ihai deand take possession, or to enter suit for collec. fendant made any promise or agreement to tion of all notes unpaid. A. V. S. Lindsley, put the premises in good and safe condition agent, also reserves the right to re-enter and before the rept contract was signed, and all take possession of said premises should M. P. evidence as to statements made that the premHines and wife fail to keep said property in a ises had been put in safe and tenantable congood sanitary condition.
dition at the time and contemporaneous with [Signed] A. V. S. Lindsley, Agent, its signing. This is assigned as error. In ex
by J. T. Lindsley. cluding the evidence, the court said it was
M. P. Hines. done because: “(1) It goes to alter the terms
to introduce a warranty of the condition of the During the rental year, M. P. Hines, the premises at the time of the demise, when no husband, died; and L. S. Hines, bis widow, such warranty is contained in the lease. (3) continued to occupy the premises under the Because the complaint made by plaintiff of same contract previously made with her and the condition of the premises had no reference her husband, and the injuries occurred after to the condition of the porch, or its insecurity, bis death. The case has been most ably and at or before the time the lease was executed; elaborately argued on both sides, and a vast said complaints relating only to mipor matters, array of authorities bave been collected and such as the accumulation of dirt on the prem. commented upon. We can only notice the ises, the absence of glass from the windows,
by an express agreement on the subject. Where, months the cellar stairs fell under ber and she was there is no agreement to put the premises in repair injured, the court held that, it not appearing tbat the tenant takes them for better or worse, and the the landlord knew of the defect in the stairs, or landlord is under no obligation to repair.
that he had been asked to repair, he was not liable If the premises are in good repair when demised, for the injury. The court says unless the landlord but afterwards become ruinous and dangerous, the knew the stairs were unsafe to use, or from the landlord is not responsible therefor either to the facts and circumstances in the exercise of ordioccupant or to the public during the continuation nary care and prudence he should have known of of the lease, unless he has expressly agreed to re- their dangerous condition, he cannot be made liapair. Clancy v. Byrne, 56 N. Y. 133, 15 Am. Rep. ble for a tort. And he will not be liable for breach 331.
of bis contract unless he had notice of the necesWhere the lessor does not covenant to repair sity of such repairs, and then only after a reasondemised premises, he cannot be made liable in dam- able time bad elapsed for him to make the repairs. ages to the lessee for their being out of repair. Spellman v. Bannigan, 36 Hun, 174. Joyce v. DeGinerville, 2 Mo. App. 596.
The mere fact that the landlord has undertaken In Norris v. Catmur, Cab. & E. 576, wbere a sub-to keep the elevator in repair will not give a rigbt tenant received an injury by a piece of the roof of action for injuries caused by nonrepair if the falling upon her head, the court says it is clear that landlord was not notified that repairs were needed. the tenant could have sustained no action against Sinton v. Butler, 40 Ohio St. 158. the landlord for nonrepair. The plaintiff can be A landlord who has covenanted to repair is not in no better position tban the tenant.
liable to the tenant in tort for personal injuries In Gott v. Gandy, 2 El. & Bl. 847, 2 C. L. Rep. 392, arising from the want of repair. Sanders v. Smith, 23 L. J. Q. B. N. S. 1, 18 Jur. 310, a chimney fell and 5 Misc. 1. injured the tenant's goods, and the court held tbat the duty to repair did not rest upon the landlord Warranty or representations by landlord. from the mere relation of landlord and tenant. If at the time of making the lease the owner war. Erle, J., says: “The present action is in form of rants the safety of the ceiling he will be liable in action for a wrong; but it is in substance for the case it falls upon and injures the tenant's infant breach of a duty arising from a contract between child. Moore v. Steljes, 69 Fed. Rep. 518. landlord and tenant. The plaintiffs ask us to inter- If the landlord, after discovering the polluted polate into that contract a term without showing condition of the water of a well, and, without remanything from which it might appear that it was edying the cause, permits the tenant to continue intended by the parties that there should be such a its use without notifying him of the cause, whereby term."
the tenant is made sick, the landlord will be liable In the absence of an agreement by the landlord for the damages. Especially when the landlord to repair he is not answerable to the tenant for had particularly warranted the water wholesome damages resulting to the latter from the want of when he made the lease. The court said the landnecessary repairs. Laird v. McGeorge, 16 Misc. 70. lord owed the duty to see that the premises were Construction of covenant to repair.
in a healtbful condition, or at least to disclose any
fact within his knowledge which tended to make Where the tenant was injured because the floor the premises unhealthful and not fit for habitaof a back room on the second story was defectively tion. Maywood v. Logan, 78 Micb. 135. and insufficiently supported and the lumber in the If the tenant learns before taking the lease that flooring worn and rotten, and the landlord bad a contagious disease has been in the house, and covenanted to make repairs, the court held that upon asking the landlord about it is informed that there was no duty to make the repairs until a the report is untrue, he has a right to rely upon reasonable time after notice, and since no notice the landlord's statement, and need not take fur. had been given in this case there was no liability on ther precautions to ascertain as to the fact. Snythe landlord. Sieber v. Blanc, 76 Cal. 173.
der v. Gorden, 46 Hun, 538. Where the owner had undertaken to repair, and But the mere fact that the owner represents the after the tenant had been in possession for five prernises to be dry and safe from water will not
and the absence of grates from some of the, in cases where the parol evidence in no way fireplaces in the house. Witness has testified contradicts or alters the terms of the written 10 nothing else. (4) The promise alleged to contract, but tends to establish an independent have been made by defendant's agent to put or collateral agreement not in conflict with it. the place in repair, or the representations that Betts V. Demumbrune, Cooke (Teon.)_48; the place had been put in repair, must be held Leinau v. Smart, 11 Humph. 308; Cobb v. Walto have reference only to the previous com- lace, 5 Coldw. 539, 98 Am. Dec. 435; Lytle v. plaints made by the plaintiff.” The plaintiff Bass, 7 Coldw. 303; Stewart v. Phenix İns. Co. excepted to the action of the court. Taking 9 Lea, 104; Vanleer v. Fain, 6 Humph. 104; up these grounds of the trial judge's action, Ferguson v. Rafferty (Pa.. 6 L. R. A. 33, notes; we will examine them in the light of the facts Durkin v. Cobleigh (Mass.) 17 L. R. A. 270, of this case.
and notes. Nor does it apply in cases where The general rule is that parol evidence is the original contract was verbal and entire, pot admissible to contradict a written agree and a part only of it was reduced to writing. inent, whether simple or by deed. Bedford v. 1 Greenl. Ev. 15th ed. $ 284a; 1 Starkie, Ev. Flowers, 11 Humph. 242; Ellis v. Hamilton, 4 367; Vanleer v. Fain, 6 Humph. 104;
Dick v. Speed, 512: Bryan v. Hunt, Id. 544, 70 Am. Martin, 7 Humph. 263; Mitchell v. Planters' Dec. 262; Price v. Allen, 9 Humph. 703; Mc. Bank, 8 Humph. 216; Leinau v. Smart, 11 Lean v. State, 8 Heisk. 22; Fields v. Stunston, Humph. 308; Cobb v. O'Neal, 2 Sneed, 438; 1 Coldw. 40; Stewart v. Phænix Ins. Co. 9 Lea, | Cobb v. Wallace, 5 Coldw. 539. 98 Am. Dec. 435; 104; Weisinger v. Bank of Gallatin, 10 Lea, Bryan v. Hunt, 4 Sneed, 543, 70 Am. Dec. 330; Nashville L. Ins. Co. v. Mathe108, 8 Lea, 362; Lytle v. Bass, 7 Coldw. 303; Bissenger v. 508; East Tennessee & V. R. Co. v. Gammon, Guiteman, 6 Heisk. 277; Hicks v. Smith, 4 Lea, 5 Sneed, 571; Kearley v. Duncan, 1 Head, 400, 464; Smith v. O'Donnell, 8 Lea, 468; Hawkins 73 Am. Dec. 179. But this rule does not apply Iv. Lee, Id. 42; Breeden v. Grigg, 8 Baxt. 163;
give the tenant a right of action in case, by reason , stronger than this: If he knows of a defect wbich of the defective construction of the walls and a is likely to produce injury, the nature of which is period of high water, water is backed up in the such that careful examination by the tenant would sewer and goes through the walls causing damage. not disclose it, he must notify the tenant of it. It Loupe v. Wood, 51 Cal. 586.
is not his duty to search for defects, and if the deSo, where, previous to the making of the lease, fect is easily discoverable he need not mention it. the owner said he would put tbe water closet and There is no legal presumption that a landlord drainage in order, and subsequently said the water has knowledge of the particular condition of a closet was in perfect order, whereupon the lease house leased by him from the facts that he is the was executed and the tenant brought action to re-owner, that he resides next door, and that the cover for illness caused by defects in the closet, house has been vacant for several months. Jackrecovery was denied upon the ground that the son v. Odell, 9 Daly, 371. representations did not amount to an agreement A landlord is not liable for injuries to the tenant nor to fraud, and that the tenant could maintain by a snow.slide wbich destroyed the house, on the no action. Burstal v. Bianchi, 65 L. T. N. S. 678. ground that he did not warn the tenant of the Fraud or deceit.
danger. The court says the evidence wholly failed
to show tbat there was any special and secret danThe landlord may be liable in case he is guilty of ger from snow slides, which was known to the fraud or deceit in effecting tbe lease.
| landlord, and which could not have been ascerIn Stevens v. Pierce, 151 Mass. 207, which was an tained by the tenant. Doyle v. Union P. R. Co. 147 action for recovery of rent paid, the court says the U. S. 413, 37 L. ed. 223. only remedy was in tort for fraud and deceit in A lessor of a building having defective walls is inducing the taking of the lease, or for negligence not liable to the lessee, who had full opportunity in failing to inform the tenant, if by reason of a to ascertain its condition, which was apparent to concealed defect which could not readily be dis- the most casual observer, from damages arising covered and which was known to the owner and from the fall of the walls, in the absence of express not known to the tenant the house was dangerous warranty or misrepresentation. Davidson to those who might occupy it.
Fischer, 11 Colo. 583. But in Keates y. Earl Cadogan, 10 C. B. 591, 20 L. Mere failure of the landlord to disclose defects J. C. P. N. S. 76, 15 Jur. 428, where the house fell in the plumbing, of which he has knowledge, will and it was alleged that the lives of the tenant and not render bim liable as for fraud in case the tenhis family were greatly endangered thereby, the ant is made sick by such defect. Blake v. Ranous, court beld that an action of deceit would not lie | 25 Ill. App. 486. because of the mere fact that the owner knew that There are few instances in which it is the duty the tenant wanted the place for immediate oceu- of the landlord to disclose to the intending tenant pation, and that it was in an unfit and dangerous any defects in the subject of negotiation. The state, and did not disclose that fact to the tenant. rule is that the landlord is not bound to disclose
So, it has been held that a lessee of a building who any defects in the structure or condition of the sustains injury occasioned by the defective condi- premises that make them unfit for habitation. tion of the building cannot maintain an action of Defects in plumbing or flues cannot be discovered, tort against the lessor founded upon a breach of perhaps, by any examination the intending tenant an agreement to repair the building within a rea- can be expected to make, but it has never been sonable time. That form of action cannot arise held that the landlord is bound under the penalty out of a mere breach of contract. Tuttle v. George of fraud to disclose such defects, even though he A. Gilbert Mfg. Co. 145 Mass. 169.
be aware of them. Coulson v. Whiting, 14 Abb. N.
Where the tenant was injured by the breaking of As a branch of the liability of the landlord for a stair wbich had sawed by a former occupant fraud or deceit the question hag arisen as to how of the premises, the court says there can be no liafar it is bis duty to disclose defects or to warn of bility on the part of the landlord without knowldangers. The rule on this subject seems to be no ledge of the defect. He must disclose concealed Waterbury v. Russell, Id. 162; Brady v. Isler, that the slave should not be removed out of the 9 Lea, 356; Barnard v. Roane Iron Co. 85 Tenn. county. In Leinau v. Smart, 11 Humph. 308, 139. Parol evidence is admissible as to collat- there was a written contract for the sale of a eral matters not varying the terms of the writ- tavern, and it was permitted to show by parol, ing, such as fraud in the soundness of an ar- as part of the same agreement, and an induce. ticle, when the written warranty entends only ment to it, that the vendor would close up an. as to title (M'Farlane v. Moore, 1 Overt. 174, other tavern he owned in the same town. In 3 Am. Dec. 752; Lytle v. Bass, 7 Coldw. 303); | Dick v. Martin, 7 Humph. 263, parol evidence or when fraudulent representations were made was allowed to prove an agreement to waive in negotiating the contract (Bornard v. Roane demand and notice of negotiable paper, alIron Co. 85 Tenn. 139); or when representa- though made at the time of the indorsement, tions and statements are made as inducements which was full and dated. In Mitchell v. to the contract, and form the basis or consid- Planters' Bunk, 8 Humph. 216, it was permitted eration of it. Waterbury v. Russell, 8 Baxt. 162; to be shown by parol that the cashier of a bank Hogg v. Cardwell, 4 Sneed, 157. In Betts v. informed the directors that one of the makers Demumbrune, Cooke (Tenn.) 48, the written had promised the indorser's Dame on the pote, contract was for the rent of a tavern. It was the evidence being treated as part of the res permitted to be shown by parol that the land- gesta. In Cobb v. O'Neal, 2 Sneed, 439, there lord agreed to erect a kitchen on the ground; was a written warranty of the soundness of a that this was an inducement to rent the tavern, slave. It was permitted to show by parol that and only part of the contract was in writing the vendee agreed to look to a third person, In Vanleer v. Fain, 6 Humpb. 104, it was held and not to the warrantor, in case of a breach, that, in a written contract for the hire of a in consideration of an abatement in price. In slave, parol evidence could be introduced to Bryan v. Hunt, 3 Sneed, 543, 70 Am. Dec. 262, show that one of the terms of the hiring was it was held that the general rule excluding parol
sources of mischief about the house which no ex- , gence, of which the landlord bas or ougbt to have amination can discover if he has knowledge of knowledge, it is the duty of the landlord to disclose them. But that exception to the rule does not ap- l it, and he is liable for an injury wbich results from ply to the case of a saw cut in one of the treads of the concealment of it. Booth v. Merriam, 155 a staircase, especially where the owner tried the Mass. 521. step and it bore bis weigbt, and be thought it would A concealed well operating as a cess-pool under bear anybody's. The tenant having neglected a house, being partly filled up and containing to require any warranty from the landlord, and water, dead vermin, and filth, from whicb noxious having had full opportunity to examine the tene- vapors arise to the injury of the health of the occument, it was his own fault if he did not see what pants, constitutes a nuisance, and renders the was apparent on the surface. The law is unusually owner who erected the house over it liable for instrict in exempting the landlord from liability for juries to a tenant who had no knowledge of it. injuries arising from defects when there is no war. The court says the cause of action is based upon ranty and no actual deceit. Bowe v. Hunking, 135 the maxim that everyone must so use his own Masg. 380, 46 Am. Rep. 471.
premises as not to injure others, and that it was the In Naumberg v. Young, 44 N. J. L. 331, 43 Am. duty of defendant to disclose to the tenant defects Rep. 380, which was an action to recover money ex; in the premises amounting to nuisance known to pended for putting the premises in condition and the defendant and concealed from plaintiff, which for losses incurred by inability to use them when would calculate to impair and had impaired the the term began, the court recognizes the rule that health of plaintiff. Kern v. Myll, 80 Micb. 525, 8 L. there is no implied duty on the owner of a house R. A. 682. which is in a ruinous and unsafe conditiou to But upon another trial of the case the proof did inform a proposed tenant that it is unsafe for hab- not support the declaration, and it appeared tbat itation, and no action will lie against him for fail- before the house was erected, years before the suit ure to do so, in the absence of express warranty or was brought, the well had been filled up even with deceit.
the surface, and during all the intervening time no The duty of the landlord to disclose.bidden de- complaint had been made to the landlord wbile fects does not spring directly from the contract but plaintiff had occupied for three years without from the relation of the parties, and is imposed by complaint, and there was nothing to put defendant law. When there are concealed defects attended on notice of the fact that the filling bad sunk and with danger to the occupant, and which a careful the well become a cess-pool. The court says the examination will not discover, known to the lessor, landlord was not chargeable with such negligent the latter is bound to reveal them in order that the ignorance as is equivalent to actual knowledge, lessee may guard against them. And this excep- and a recovery was denied. Kern v. Myll, 94 Mich. tion applies to the case of an insecure covering to 481. a cess-pool in the yard, which is covered with earth In Wallace v. Lent, 29 How. Pr. 289, 1 Daly, 481, so that grass and weeds are growing over it, and where the action was for rent, which the tenant the location of it is not pointed out to the tenant. refused to pay because the premises were unsafe Cowen v. Sunderland, 145 Mass. 363.
for occupation and had to be abandoned, it apBut where the tenant was injured by falling into peared that the landlord knew that they were not a cess-pool in the yard, which was covered by an fit for occupation by reason of a cause which the iron cover set into wooden frames which had be- tenant could not discover by a mere inspection of come decayed, the court said it was as much her the premises, and the court held that when the duty when she bired the house and yard to examine landlord knows that a cause exists which renders the premises and accertain whether they were in the house unfit for occupation it is a wrongful act such repair that she could use tbem as of the owner. on his part to rent it without giving notice of its And it was held that sbe could not recover because condition. the existence of the cover was plainly visible. But Where a Fault partly filled with dangerous mat. the court says, there is a concealed defect that ter was boarded over so that the tenant could not renders the premises dangerous, which tbe tenant learn of its existence, although the landlord knew cannot discover by the exercise of rensonable dili- | that it was dangerous, the landlord will be liable if
evidence has no application to agreements made , not remove his tools therefrom, and other consubsequent to the execution of the written conditions. In Smith v. O'Donnell, 8 Lea, 468, it tract. In Cobb v. Wallace, 5 Coldw. 539, 98 was held that a contract might be part in writAm. Dec. 435, there was a written contracting and part in parol, and in such case parol for the hire of a coal barge. It was allowed evidence was admissible. In Breeden v. Grigg, to prove by parol that it was hired for one par- 8 Baxt. 163, it was held that parol evidence is ticular purpose and trip only, and the question admissible to prove conditions upon which a whether the writing embraced the whole con- written contract was made. In Waterbury v. tract was for the jury. In Lytle v. Bass, 7 | Russell, 8 Baxt. 162, there was a sale of corn, Coldw. 303, a pote was given for a sawmill. -contract in writing. It was permitted to be It was permitted to show, as a seperate, collat- shown by parol that the corn was represented eral, substantive agreement, that the vendor to be sound, as an inducement to the written warranted the sawmill. In Bissenger v. Guite contract. In Brady v. Isler, 9 Lea, 357, it was man, 6 Heisk. 277, it was held that it was com- held that parol proof may be allowed to show petent to show by parol that, at the time a whether a written contract was in fact made, promissory note was executed, it was agreed it or whether it was to take effect only on certain should be held for nothing, on tbe happening conditions. In Barnard v. Roane Iron Co. it of a specific condition. In Hicks v. Smith, 4 was beld that, in a proceeding by a vendor to Lea, 463, there was a mortgage, and it was per rescind a contract for the sale of land on the mitted to show by parol that Tbomas should ground of fraud, parol evidence of the fraudhave priority when it was satisfied, though the ulent representations of the vendee, made in mortgage did not so provide. In Hawkins v. negotiating the contract, is admissible, the Lee, 8 Lea, 42. it was allowed to add terms to a purpose being to show that the vendor was enwritten contract by parol, to the effect that trapped into an agreement that he otherwise plaintiff was to work at a particular place, and I would not bave made. The general rule, as
he does not disclose the condition to the tenant. , and failed to disclose the condition to the tenant, Martin v. Richards, 155 Mass. 381.
although it was so situated as not to be readily disThe owner of a dwelling bouse, who, knowing coverable to them, and the court held that because that it is infected with small pox so as to endanger of his failure to disclose his knowledge he was liathe health of the occupants, leases it for the pur- ble for the injury. poses of a habitation without disclosing the fact to In Schmalzried v. White (Tenn.) 32 L. R. A. 782, one who is ignorant of its condition, and who, with the court held tbat the duty of disclosing to the out contributory negligence on his part, by reason tenant hidden defects and secret conditions that of the state of the house, is attacked by the disease, contributed to make the property unsafe is not will be liable for the injury. Minor v. Sharon, 112 imposed upon the landlord who is ignorant of them Mass. 477, 27 Am. Rep. 122.
without fault or negligence on his part; but it says A landlord who lets premises knowing that they that this ruling is not intended to conflict with that are infected with a contagious disease without in HINES V. WILLCOX, that the landlord is liable, potifying the tenant thereof is liable to the latter, not only for what he knows of the defects in the in case the disease is communicated, for the dam- premises let, but for what he might have known age sustained. Cesar v. Karutz, 60 N. Y. 229, 19 by the exercise of reasonable care and diligence. Am. Rep. 164. In an action by a tenant for injuries caused by
Statutory liability. contracting diphtheria in the landlord's house, the Under the English act of 1885, relating to the court says it is settled that a landlord may be liable housing of the working classes, which requires that for not disclosing a source of danger known to bin the house shall be in all respects reasonably fit for to be such and not discoverable by the tenant. But human habitation, the tenant may sue the landit is not enough that the landlord knows of the lord in case the premises are not reasonably fit for source of danger unless he also knows or common babitation so that the plaster on the ceiling falls experience shows that it is dangerous. He is and injures ber. Walker v. Hobbs,'L. R. 23 Q. B. bound at his peril to know the teachings of com- Div. 458. mon experience; but he is not bound to foresee the Under the California Civil Code the tenant has results of whicb common experience could not the option, in case repairs are needed and they do warn him and which only a specialist would appre- not exceed in value a month's rept, to make them hend. The general rule between landlord and ten- and deduct the amount from the rent or to vacate ant is careat emptor. And this rule cannot be the premises, and in case he fails to exercise his eluded by showing that the tenant did not know option he cannot recover damages for injuries done of a defect, that the landlord did, and then asking by the dilapidated condition of the premises. Van the jury to pronounce it a secret source of danger. Every v. Ogg, 59 Cal. 565. Cutter v. Hamlen, 147 Mass. 471, 1 L. R. A. 429. The Where a statute required the owner to put the court further holds that the landlord is bound to premises in a condition fit for occupation, and the disclose the fact that the drains are in bad condi-tenant was injured by the fall of the woodshed tion, and that there has been a case of diphtheria which a servant of the landlord had assured the in the house within a short time. The court says tenant was safe, the court held that the lessor there is strong ground for requiring the tenant to would be liable for injuries resulting from defects insist on a warrant of the safety of drains if be in the premises known to him and unknown to the does not wish to take the risk; but that defective lessee if he allowed the lessee to occupy in ignodrains in combination with diphtheria in the house rance of the risk. Whenever the defect is inherent indicate a special danger of infection from the and unknown to the lessor be is not accountable, drains, and that the landlord could not keep quiet nor can be be held wben he has done all that a reaunder such circumstances.
sonably prudent man would have done towards Io Coke v. Gutkese, 80 Ky. 598, 44 Am. Rep. 499, fitting the place for occupation. It is as much the where the injury was to the tenant's daughter, it duty of the lessee to satisfy bimself of the safety of appeared tbat the landlord knew of the dangerous the premises as it is of the lessor to make them so; condition of a portion of the premises which would and when it would appear from an examination be frequently used by the tenant and his family, I such as an ordinarily prudent man would make be