181 Mo. App. 203 | Mo. Ct. App. | 1914
Suit for rent by. a landlord upon a written lease of an unfurnished house for a term of two years and six months from November 1,1910. The lease provided that “in case of abandonment or surrender of premises before termination of this lease, the obligation to pay rent shall continue.” Defendant lived in the house and paid the rent up to Februr ary 1, 1912, and then moved out, and the house remained unoccupied during the months of February and March of that year. The suit is for the rent of those two months.
Defendant’s claim is that he was constructively evicted. The grounds of this claim are that the kitchen was infested by water bugs or cockroaches to such an extent that they contaminated the cooking utensils and required all food to be kept in sealed jars,' and that the furnaqe pipes sagged and became defective so that the heat was not conducted to the house but leaked out into the basement and the house could not be heated sufficiently to be comfortable.
There was no clause in the. lease requiring the house to be in any particular condition. On the con
There being nothing in the contract stipulating that the house should be free from vermin or in a good state of repair, and there being no statute in force on the subject, the rights and liabilities of the parties are to be determined and governed by the common law which seems to regard the rights of the landlord with more concern than those of the tenant. Consequently, as said by 1 Tiffany on Landlord & Tenant, sec. 86, page 556, “It is agreed by the authorities at the present time that, as a general rule, there is no obligation on the part of the lessor to see that the premises are, at the time of the demise, in a condition of fitness for use for the purpose for which the lessee may propose to use them. A lessee, like the purchaser of a thing already in existence, is presumed to take only after ■examination. The maxim caveat emptor applies, and if he desires to protect himself in this regard he must ■exact of the lessor an express stipulation as to the condition of the premises.” Further on in the same section, page 557, the author says: “Since the tenant thus takes the premises as they are, with all their imperfections, he cannot assert a right to rescind the lease, or, which is in practical effect the same thing, defend against the claim for rent, on the ground that the premises are in unsatisfactory condition or are unsuitable for his purpose.” And then the author goes on to say “so it has been held that it is no defense to an action for rent . . . that a house leased (unfur
It is true there is a rule of law that if there are hidden defects or dangers known to the landlord and unknown to the tenant and which he could not discover by reasonable inspection, the landlord, on the ground of negligence, will be liable to the tenant for any injury resulting to the lessee from such defects or dangers. And in 1 Taylor on Landlord & Tenant, 223, it is said that upon the discovery of such defects, known to the lessor and not revealed, and unknown to the lessee and which a careful examination would not detect, and which may be dangerous to the occupant and render the premises untenantable it is generally held that the tenant will be justified in abandoning them. The authorities cited, however, in support of the text were Leonard v. Armstrong, 73 Mitch. 577 (in which state the rule is different from that in other states), Dennison v. Grove, 52 N. J. Law 144 (in which there was
In Vanderbilt v. Persse, 3 E. D. Smith (N. Y.) 428, it was held that a tenant is not evicted by reason of such matters as bad smells in and about the premises, a stagnant pond near the place, the kitchen being too hot with the stove in it, and vermin in the bed rooms. “To constitute a constructive eviction, there must be an intentional and injurious interference by the landlord which deprives a tenant of the beneficial enjoyment of the demised premises; or materially impairs such beneficial enjoyment.” [Seaboard Realty Co. v. Fuller, 67 N. Y. Supp. 147.] In Pomeroy v. Tyler, 9 N. Y. St. Reports 514, the tenant claimed an eviction on the ground that the rooms were overrun with vermin, bedbugs, cockroaches, croton bugs and red ants, but the court held that this did not amount to an eviction. In the case of Jacobs v. Morand, 110 N. Y. Supp. 208, the evidence in behalf of the tenant that the apartment, including the beds and closets and all the rooms, were overrun with water bugs and bedbugs, and the suit for rent was dismissed on tbie ground that the vermin constituted an eviction. The appellate-court held otherwise and reversed and remanded the-case..
In Fisher v. Lighthall, 4 Mackey 82, 54 Am. Rep. 258, the tenant claimed an eviction because the house-was unfit for habitation on account of sewer and illuminating gases escaping from the pipes and that it was so badly infested with ants that food could not be-protected from them. The court held that this was no defense in the absence of a covenant in the lease-that the property was fit for habitation, and said: “Parties are to be left to make their own contracts, and when they have done so the court will not undertake to introduce new terms into a written contract. . . . The law does not undertake to treat contract
In Hart v. Windsor, 12 Mees & W. 68, the tenant claimed an eviction because the house was so infected with bedbugs it could not be inhabited, and the jury found for defendant. Notwithstanding, the court held that this was no defense and said “there is no contract, still less a condition, implied by law on the demise of real property only, that it is fit for the purpose for which it is let. ... It is much better to leave the parties in every case to protect their interests themselves, by proper stipulations; and if they really mean a lease to be void by reason of any unfitness in the subject for the purpose intended, they should express that meaning.”
Even if the circumstances complained of are such as to justify the tenant in abandoning the property and in claiming a constructive eviction, he must do so in a reasonable time after the circumstances arise which give him the right to abandon, and if he fails to do so, he loses the right. [11 Am. & Eng. Ency. of Law, 480; Heilbrun v. Aaronson, 116 N. Y. Supp. 1096; Seaboard Realty Co. v. Fuller, 33 Misc. Rep. 109, 67 N. Y. Supp. 146; Kent v. Ward, 111 N. Y. Supp. 743.] In the case at bar defendant remained in the premises for fifteen months after the conditions were discovered. And there is no claim that the landlord fraudulently misrepresented the condition of the house.
As to the furnace pipes leaking, there is no claim that the plaintiff knew the pipes were defective or that he misrepresented their condition or made any representation in regard to them. They began to give way after defendant had been in the premises. In the absence of. an express agreement the lessor is under no obligation to repair the leased property whether the
The judgment is affirmed.
