The opinion of the court was delivered by
Thе testimony in this case warranted the finding of the following facts : That in July, 1883, the defendants let to the plaintiffs, fоr a residence, three rooms on the third floor of No. 90 Morton street, Newark, with the right to use for certain purposes a balcony extending along the rear of the third story of Nos. 86, 88 and 90 Morton strеet; that the landlords agreed to attend to all repairs; that the plaintiffs occupied thе premises from the letting until December 22d, 1884, when, while they were using the balcony to hang out clothes — one of the authorized purposes — the rail of the balcony broke, and they both fell to the grоund, sustaining the injuries for which this suit was brought; that at the time of the accident the rail had become somewhat rotten, and the nails holding it were somewhat rusted, iu consequence of which the rail gave way under the strain; and that the plaintiffs were not chargeable with any contributory negligence. Under thеse circumstances, the trial justice charged the jury that if they found that the landlords had contracted to make repairs to the premises, and that the railing was at the time of the accident in an unsafe and insecure condition for the purpose for which it was used, then a prima fade case for the plaintiffs was shown. The jury found iu favor of the plaintiffs, and their verdict is now before us on a rule to shоw cause why a new trial should not be granted.
The charge of the court was, in effect, that the сontract of the landlords to make repairs, to attend to all repairs, was equivalent to a guaranty that the premises should not become unsafe or insecure through lack of reрair. It ignored any inquiry as to whether the landlords were or by due diligence
The contrаct did not require that the premises should be prevented from getting out of repair, but rather implied that they would be likely to become so. Nor did it expressly provide when, in such case, the landlords should restore the premises to good condition. Hence, to ascertain the time or timеs for making repairs, we must invoke the usual legal implication, applicable to contrаcts indefinite as to the time of performance, that they must be performed with reasonablе diligence and promptness. This legal rule, applied to the present contract, impоsed upon the landlords the duty of properly inspecting the premises and of making such repаirs as a i lue inspection would show to be necessary. But it cannot be stretched so as to include an obligation to repair what a reasonable examination would not discover tо be in need of repair. Such straining Avould deprive the rule of the very element which makes it applicable to contracts in general — the underlying idea of reasonableness. This principle does not at all trench upon the established rule of the common law, that express сonvenants bind the covenantors to do as they have ■igreed, if human power can acсomplish it; for the principle loes not touch the expressed terms of the contract, but оnly supplies that which the parties have omitted to provide for, and which, nevertheless, is requisitе to render their verbal stipulations effectual.
The cases of Leavitt v. Fletcher, 10 Allen 119, and Green v. Eales, 2 Q. B. 225, illustrate the force of this principle in relаtion to agreements of this nature. In Leavitt v. Fletcher, the landlord had covenanted “ to makе all necessary repairs on the outside of the buildings.'' The roof of one of them — a carriage-house — fell from the weight of snow upon it, injuring the tenant's carriages. There was nothing to indicatе that the roof, if actually in good repair, would not have sustained the weight-, but it is plainly inferable that the roof seemed to be in proper condition. The court decided that the landlord wаs not answerable for the injuries occasioned by the fall, but was
In the present case, the question whether the landlords would by reasоnable diligence have learned that the railing needed repair is important, for although the plaintiffs and many other tenants had frequent occasions for observing the condition of the railing, no one appears to have noticed that it was insecure.
The verdict should be set aside.