28 Ind. App. 578 | Ind. Ct. App. | 1902
Suit by appellee for personal injuries from alleged defective leased premises.
The complaint avers that the porch was dangerously, carelessly and negligently constructed by appellant. The findings show it was constructed by appellant’s vendor, but they also show that appellant could, by the exercise of ordi
If the landlord leased the premises knowing at the time that they were in a defective condition, whether from negligent construction or from decay, and concealed that fact from a tenant, he might be held liable for damages without regard to any question as to his duty to make repairs. See Helwig v. Jordan, 53 Ind. 21, 21 Am. Rep. 189; Deller v. Hofferberth, 127 Ind. 414. But if the premises were in a safe condition when leased and afterwards became defective through the supports becoming rotten through use, age and the weather, the liability of the landlord could not exist unless it was his duty to make repairs. The pleading must rest upon one theory or the other, because in one case a recovery would be sought upon the theory of a positive wrong done, while in the other it would rest upon the theory of a negligent failure to perform a contractual duty.
The averment in the pleading that "although defendant had agreed with said Levy as well as said Timmons that he would keep said premises in repair,” taken in connection with other averments, makes it susceptible of the construction that its theory is to charge a liability through a negligent failure to perform the contractual duty to repair. The answers to interrogatories preclude a recovery on the theory
There is no implied covenant on a landlord's part to repair. Such a covenant can not be implied from the mere relation of landlord and tenant. The tenant has possession and control of whatever passes to him under the lease. The landlord has no right to go upon the premises unless the tenant consents, or he reserves the right in the lease. 1 Taylor Landl. & Ten. (8th ed.) §§174, 325, 327; Purcell v. English, 86 Ind. 34, 44 Am. Rep. 255. In this case the premises were leased by a written lease. It contains no covenant to repair. It is found that prior to the execution of the lease appellant had promised to repair. But the promise is not contained in the lease. There is no more authority for inserting such a provision in the -written lease than there would be to insert any other provision as to the terms and conditions of the tenancy. We know of no reason or authority for making an exception to the well established rule that a written contract merges all prior or contemporaneous oral agreements. Brown v. Russell & Co., 105 Ind. 46; Ice v. Ball, 102 Ind. 42.
It is true the jury found that appellant told appellee he was to make repairs, but this was during the tenancy, and even if construed to be a promise to repair it was without consideration. Purcell v. English, 86 Ind. 34; Taylor v. Lehman, 17 Ind. App. 585. Moreover, the complaint does not count upon a negligent failure to comply with a contract of leasing by appellee from appellant. It is averred that appellant leased the building to Levy, and appellee leased the upper story from him. It is unnecessary to enter upon a discussion as to what covenants, if airy, in the original lease would inure to the benefit of a sub-tenant. There was no contract between appellant and appellee, and no assign
Tie answers to the interrogatories are inconsistent-with the general verdict, but in view of the fact that some confusion exists because of a double set of interrogatories having been submitted to the jury, it is believed that the interests of justice will be best subserved by a retrial, and it is so ordered.
Judgment reversed.