Bowe v. Hunking, 135 Mass. 380

Bowe v. Hunking

135 Mass. 380 | Mass. | 1883

Field, J.

There is no warranty implied in the letting of an unfurnished house or tenement that it is reasonably fit for use. Dutton v. Gerrish, 9 Cush. 89. Foster v. Peyser, 9 Cush. 242. Doupe v. Genin, 45 N. Y. 119. Hart v. Windsor, 12 M. & W. 68. Sutton v. Temple, 12 M. & W. 52. Wilson v. Finch Hatton, 2 Ex. D. 336. The tenant takes an estate in the premises hired, and persons who occupy by his permission, or as members of his family, cannot be considered as occupying by .the invitation of the landlord, so as to create a greater liability .on the part of the landlord to them than to the tenant. The tenant is in possession, and he determines who shall occupy or enter the premises. Robbins v. Jones, 15 C. B. (N. S.) 221, Jaffe v. Harteau, 56 N. Y. 398.

In the case at bar, there was no express or implied warranty, and no actual fraud or misrepresentation. If the action can be maintained, it must be on the ground that it was the duty of the defendants to inform the tenant of the defect in the staircase; this duty, if it exists, does not arise from the contract between the parties, but from the relation between them, and is imposed by law. If such a duty is imposed by law, it would seem that there is no distinction, as a ground of liability, between an intentional and an unintentional neglect to perform it; but in such a case as this is, there can be no such duty without knowledge of the defect. There is no evidence of any such knowledge, except on the part of C. D. Hunking, and the other defendants cannot in any event be held liable, unless his knowledge can be imputed to them, as the knowledge of their agent in letting the premises. The evidence is insufficient to warrant the jury in finding that C. D. Hunking intentionally concealed the defect from the tenant; and the action, if it can be main-tamed, must proceed upon the ground of neglect to perform a duty which the law imposed upon the defendants.

A tenant is a purchaser of an estate in the land or building hired; and Keates v. Cadogan, 10 C. B. 591, states the general *384rule, that no action lies by a tenant against a landlord on account of the condition of the premises hired, in the absence of an express warranty or of active deceit. See also Robbins v. Jones, 15 C. B. (N. S.) 240. This is the general rule of caveat emptor. In the absence of any warranty, express or implied, the buyer takes the risk of quality upon himself. Hight v. Bacon, 126 Mass. 10. Ward v. Hobbs, 3 Q. B. D. 150. Howard v. Emerson, 110 Mass. 320. This rule does not apply to cases of fraud. It does not apply to the sale or delivery of dangerous or noxious articles. It is held that “ a man who delivers an article, which he knows to be dangerous or noxious, to another person, without notice of its nature or qualities, is liable for any injury which may reasonably be contemplated as likely to result, and which does in fact result, therefrom, to that person or any other, who is not himself at fault.” Wellington v. Downer Kerosene Oil Co. 104 Mass. 64. Norton v. Sewall, 106 Mass. 143. The foundation of liability in these cases, when there is no warranty and no misrepresentation, is negligence. George v. Skivington, L. R. 5 Ex. 1.

French v. Vining, 102 Mass. 132, rests upon negligence, or upon an implied warranty that the hay was fit to be fed to cows. This principle of law relating to dangerous or noxious articles has been applied to the letting of tenements. Minor v. Sharon, 112 Mass. 477, and Cesar v. Karutz, 60 N. Y. 229, were both cases in which a tenement or an apartment was let infected with small-pox. In the first, the jury found that the lessor concealed his knowledge that the tenement was so infected, in order to induce the lessee to hire and occupy it; but the declaration was not for deceit, but for negligence in omitting to inform the plaintiff, and the opinion proceeds upon the ground of negligence.

In Cesar v. Karutz, it does not appear that there was any intentional concealment, and the decision rests upon the nonperformance by the defendant of his duty to inform the plaintiff. It is not settled how far this exception to the general rule extends. It has been said that there is no implied warranty that land let for agricultural purposes is free from noxious trees which injure or destroy cattle or sheep. Erskine v. Adeane, L. R. 8 Ch. 756. When a house is infected with small-pox, the *385danger to life is from a cause that cannot be discovered by the tenant from any examination he may make. It is obvious that there may be other concealed sources of mischief about a house, which no examination can discover. Spring-guns might be set in it; traps or other contrivances might exist, which would injure the most careful occupant. If the landlord knew of such, it might be held to be his duty to give information to the tenant. Such traps or contrivances are not merely a want of repair; they are, in a sense, active agencies of mischief, which no tenant would expect to find in even a decayed and ruinous tenement.

Without undertaking to determine the limits of this exception to the general rule, we think the case at bar is not within the exception. The defect was that in the back staircase “ the tread of the second stair had been sawed, about four inches from each end, across to within about an inch of the back side of it, and lengthwise cut out about an inch from and parallel to the back side of the tread,” and was at the time of the accident unsupported. It is argued that this was in effect a trap; but if this be so, there is no sufficient evidence that C. D. Hunting knew it to be a trap. There was no evidence that he caused the step to be sawed out; and the only evidence of knowledge on his part that. it had been done was from his own statement to the effect that he knew that the step had been sawed out; that he tried the step, and it bore his weight, and he thought it would bear anybody’s. The saw cuts must have been visible to any one who examined the step. The tenant made no examination of it. There is no evidence that O. D. Hunting knew that the step was dangerous, unless this could be inferred from his knowledge that the step had been sawed out. The tenant having neglected to require any warranty from his landlord, and having had full opportunity to examine the tenement, it was his own fault if he did not see what was apparent upon the surface. If the saw cuts visible on the surface were such as to put a reasonable man upon inquiry into the nature of the support to the tread of the step, it was the tenant’s fault that he did not examine into that. There was no evidence that C. D. Hunting knew that the step would give way if any one put his foot upon it. If we disregard all that part of his statement which was in *386his favor, there only remains evidence that he knew the step had been sawed out, and this an examination by the tenant must have disclosed. Buildings are let in all sorts of condition, and the law is unusually strict in exempting the landlord from liability for injuries arising from defects when there is no warranty and no actual deceit. Tenants often make slight changes in the premises for their own convenience, the effect of which the landlord cannot without examination know. If a succeeding tenant is permitted to examine the premises, the rule of caveat emptor applies. Judgment upon the verdict.