Opinion of the Court, by
The amended declaration states a case of assumpsit upon a written agreement whereby the defendants undertook to build for the use and occupancy of the plaintiffs a building to be used as a retail store, and to construct it in a manner fit and suitable for the plaintiffs’ occupancy as such retail store; that defendants tendered the building to plaintiffs and represented it to be built and finished in a manner fit and suitable for plaintiffs’ occupancy as such store ;• the plaintiffs-depending upon the truth of such representations accepted and occupied the building and have continued to occupy it under the written agreement and of a lease made in pursuance-thereof; that defendants failed and neglected to perform their agreement with plaintiffs in that they failed to make the building, roof and the skylight thereof fit and suitable to turn and keep out the rain and other water that fell and flowed upon said roof and skylight,, and in consequence of
This declaration was demurred to on the ground that it set forth no cause of action. Judge Cooper of the Eirst Circuit Court sustained the demurrer, to which exceptions are now brought to this Court.
In the former case between these parties we reversed the judgment for the plaintiffs and ordered a new trial on the ground that the declaration was for trespass in case by a tenant against a landlord, for gratuitous repairs of a tenement unskillfully and negligently done, and the proofs and findings of fact supported an action upon a covenant that the building was fit and suitable for the intended use of it by plaintiffs, and there was a variance between the declaration and proofs. In the course of the decision occurs this, remark: “The evidence fully sustains the finding of fact — (that the leak was owing to the original' faulty method of constructing the skylight), and if the declaration had been for damages for breach of the agreement to bu-ild’, or upon a covenant express or implied that the building should be finished, fit and suitable for plaintiffs’ intended use, this evidence would apparently have justified a judgment against defendants.” This was a comment on the character and effect of the evidence, and though it was delivered without much consideration, we did intend not to express any opinion that the agreement to build on the lease contained a covenant that the building should be fit and suitable for the plaintiffs’ use, and we now find that neither the agreement nor the lease contain any express covenant that the building was to be fit and suitable for plaintiffs’ use and occupancy. Is there any implied covenant of this character? This question is now raised by the demurrer. Exhaustive discussion of the landlord’s liability to the lessee for injuries can be found in 1 Taylor’s Landlord & Tenant, Secs. 175a, 327, 328 and 382. Section 175a : “ As the lessor does not warrant the condition of the premises, and the tenant, because he can inspect them, assumes the risk of their state; for any injury suffered
In Looney vs. McLean, 129 Mass., 33, it was held that in the case of landlord and tenant, there is no implied warranty on the part of the former that the demised premises are tenantable or in good condition, the tenant being supposed to examine and judge for himself — but this rule was held not to apply to staircases, passage ways, doorsteps, etc., • that were meant for general use by all the tenants, and no one of the tenants responsible for the repairs of such places.
Scott vs. Simons, 54 N. H., 426, is an instructive case. Here the court held that there is no implied warranty on the part of a. landlord of leased premises that they shall be fit
Smith, L. & T., 262; Woodfalls, L. & T., 493; Taylor, L. & T. 381; 1 Pars. Cont., 589; 1 Wash., R. P. (3d ed.), 473; 12 M. & W., 52; 34 Beav., 250; L. R, 6 Exch., 217; 7 Hill, 83; 9 Cush., 89 and 242; 106 Mass., 202; 45 N. H., 36. It is very clear upon the authorities that the defendants, in the absence of proof of actual fault on their part, are not liable in this action by virtue of any implied warranty that the plaintiffs’ goods should not be injured by the bursting of a drain pipe. “The defendants might be liable to their tenants, or to strangers, for subsequent injuries, if, after notice of the breach they were negligent in not repairing it, but we think not to anyone who, being aware of the defect, unnecessarily exposed his goods to injury by it.” Libbey •as. Tolford, 48 Me., 317, holds that “ in a lease of a store there is no implied warranty that the building is safe, well built, or fit for any particular use.” In Stevens vs. Peirce, 151 Mass., 209 (1890), the Court say: “It is well settled that there is no implied covenant in a lease of this kind (a dwelling house) that the premises were fit for habitation. The doctrine caveat ernptor applies, and the rule is the same in reference to a lease of a dwelling house as to a conveyance
1 Taylor, L. & T., Sec. 382, sums up as follows: There is no implied wár-ranty on the letting of a house that it is safe, well built or reásonably fit for habitation; citing Cleces vs. Willoughby, 7 Hill, 83, where it is said that “ the doctrine of implied warranties relates to the title and not to the quality of the premises.”
Having found that there was no express warranty either in the agreement to lease or in the lease between the parties that the store was to be safe, well built and fit for use as such, and, holding that no such warranty is implied from the relation of landlord and tenant between the parties, we do not see how the plaintiffs can in this form of action recover damages to their goods occasioned by rain water coming through a defectively constructed skylight. We therefore overrule the exceptions. We have not considered it necessary to discuss at length the point made by defendants that the exceptions should be dismissed, because not submitted to opposing counsel before being allowed to examine the bill, as required by Eule 15 (C) of the Circuit Court. We regard this rule as directory and, generally, the Court would refuse to sign the bill until opposing counsel had approved of it. If the Court, as was probably the case here, signed the bill inadvertently, the proper course would be to withdraw the