*1 cause to him until work accrued after was available de- fendant plaintiff. refused continuing to call breaches was, their nature. He therefore, required employment to seek elseswhere but could have held himself readiness, he did, by call to work defendant.

We have by examined cases cited defendant and find them not point. However, reply deny allega- defendant insists that the does not tion answer plaintiff that had not employed been the de- allegation fendant since 15, 1933, and, therefore, December that must question be taken as sustaining confessed. This up comes judgment the motion for on the pleadings and such are not motions with Every looked favor the courts. intendment reasonable must taken in plaintiff favor under circumstances. J., pp. 666, reply terms, C. While, not, deny does [49 667.] plaintiff employed by not been Decem- since defendant 15th, ber alleges expressly was in plaintiff employ alleges of the reply contract defendant and the that the was continuing one, requiring work in defendant to call seniority every order of his while remained each and day effect, in force and damág'es the action one for failure was part provide opportunity defendant to to work seniority, provided order said contract. Plainly, on reply contending its face, shows that the contract in force was a and effect that there con- tinuing breach call plain- on defendant’s its it filing terms, tiff work in at the time accordance its allegations suit. No drawn of this other inference from the could employ reply still defendant’s except filing time at the of the suit. reversed and the

From should be what we said the remanded, All concur. cause so ordered. Appel friend, D. Norris, next Norris, Ann

Winifred Lincoln Respo Ethel M. Walker, v. Frank P. lant, Walker (2d) 404. 110 S.W. ndents. City Appeals. November

Kansas Court *2 & ConkMng Sprague appellant. and B. Wilkinson for Mayer, Edw. Shultz & respondent. Owen for

SPERRY, plaintiff Winifred Annwas and will C. Norris below age years designated of She was and one-half court. three complained This suit when of herein was received. injury below brought as next friend. Defendants in her behalf her father Joseph, in St. leased apartment are the owners of an house designated defend parents The owners will plaintiff. ants this court. She plaintiff’s petition. court sustained a demurrer to trial against whereupon judgment was entered plead further,

refused to Therefore the sole judgment plaintiff her. From this has appealed. plaintiff’s petition stated cause question here is whether involved of action. alleged have been sus-

Plaintiff sued defendants landing adjacent to and en- fell from a used tained when she story occupied her apartment and trance the second alleges landing reached parents. in her that this She building; that when the stairway rear of and outside of the apartment the lease of the negotiating parents were child, they three small and defendants, verbally that told years age, plaintiff herein; stairway one-half and landing edge stairway the outer balustrade at and said landing open except open unguarded, and insufficient consisting pieces ap- of two rails or x lumber laid stairway proximately parallel landing, rails one being approximately stairway 18 inches above the floor of said landing being first; and the approximately other 18 inches above the told defendants such a situation with reference to the unsafe, perilous at that time rendered same dangerous child, for their said small if plaintiff, likely situation corrected fall would be therefrom alleged injuries. defendants, and suffer serious She further plaintiff’s parents consideration rent said contemplation apartment, possibility falling balustrade, agreed that, safety thru said open *3 they open open would enclose said in- balustrade and enclose said and guarded stairway sufficient landing screening wire and or or might material, thereby other suitable in order that pre- be falling from vented thru off said balustrade of said and and landing; that, and upon agreeing, defendants so plaintiff’s parents agreed to and become did tenants from month month in said to premises so and remained at the time she received the sued on; that defendants stairway and control retained over said and land- ing purpose making agreed upon. the alterations therefore proceeds The then that, requested set out often to altho so do, defendants negligently stairway thereafter to enclose said failed landing they agreed do, and had and direct a result of landing negligence failing defendant’s enclose stairway and stated, as heretofore plaintiff fell off struck and it, suffering concrete walk some twelve feet beneath and per- serious injuries. manent they- claim respond

Defendants are not liable to growing for contract; they might, out of the violation of a any damages resulting in this been liable neg- ligence making on their repairs improvements or they attempted any. or they assumed to make they say But did not any undertake make such repairs, alterations or they they charged petition; say, are nor, not so are a, charged negligent performance dicty therein with created and, by relationship but, charged landlord are with a complete specific alleged obligation. contractual “It .is settled law in upon, action lies a contract this state that made altho plaintiff, defendant for benefit of privy Gosnell, al. not the' consideration. et [Rogers 590, give fight cases sue fbr the cited.] must, contract, be his

breach of a itself made for benefit.” contract App. Telephone Company, 80, v. The Union Western [Markel C.); al., (K. l. c. 85 Marcheck v. Klute Mo. et 280-292.] pleaded specific here for. the made benefit of therefore, and, has other she has a to maintain this action if she wise cause of action. stated any repair, altera gratuitously

If defendants had assumed to make landing, improvement tion whether or ordinance, they contract, law, statute, or do so bound to common any injuries damages on respond in account re would be liable to negligent thing doing ceived caused undertook do. l. c. [Glenn cited; l. c. Shaw (St. Louis), 889,W. cited; there Finer 138 S. authorities v. Nichols l. c. 891.] to make it the law that a contract with his tenant

Is designated improvements, therefor, certain receive consideration wholly disregard obligation yet'escape and then contractual liability injuries resulting beneficiary contract, beneficiary injury, very even from the very tho such suffered the by' contracting cause, contemplated which was both discussed and ? parties tenancy .question when the is the are That here, pleaded; because that is the situation called decide pleaded true de- purposes facts are assumed murrer herein. filed n Degnan (Mo.), Doty 246 S. W. 1. c. Reeves there the land it to law: “If is an declared repair premises he is lord will breaches *4 damages. [Dailey Yogi, the the liable on contract to tenant v. 707; Paxton, 268 App.. 263, 187 Mo. l. 173 Kohnle v. c. S. W. Dobbins, 463, 155;W. 192 S. W. Piper Tailoring 188 S. Peter Co. v. 1044; Gurney (Mo. 735; Marcheck v. App.), W. McBride v. 185 S. 654; 113 Klute, App. 280, S. W. Glenn v. S.) (N. merely 109 16 S. W. L. R. A. The court in that 699.] long jurisdictions. a rule reiterated established and other general many important exceptions. in- rules times have For general Degnan stance, Doty another case of v. rule declared the al., supra, liability is a et. the effect that defendants’ t.o liability greater can A be than his tenant himself. child no guilty of con- years tender such as cannot tributory supra, whereas the negligence, Shaw v. tenant contributory might recovery neg- himself reason of barred from person except ligence. general law. that no rule.of a also one It. damages recover party is a covenant its who or excepted. breach; one was whose benefit made covenant Klute, It is supra.] the contention of [Marcheck Dailey Doty, Vogl, supra, Degnan and in rule declared its exception covenanted, has in this case because defendants for a consideration, making lease, at the valuable time of the to make protection, certain for her very purpose and that the agreement prevent was to the exact event which happened; prevention personal injury in which the manner occurred all contemplated parties time; to the covenant at the defendants the pur- reserved pose making improvements, granting only the tenants pending improvements. to use same authority There is support theory. much In Shearman & Negligence Redfield on the (6 Ed.), pages Law of vol.

1864, it is said where there is a on the of the land- covenant lord to make repairs certain needed he fails make them in notice, reasonable due personal injuries time after where result therefrom very to a tenant privy those nature anticipation neglect covenant is create an such will injuries result in guests, family, authority and servants. a number That cites Missouri which, eases states, author hold to effect. c. Fillingham, case of Collins v. l. authority

St. Landlord Appeals, Louis of 1 Court of Wood on Tenant, pp. 790-791, showed plaintiff’s where evidence mother, including that her plain a woman with several children small tiff, story apartment rented which an second was reached outside stairway, landing opened, porch apartment which the being porch with was rotten and unsafe enclosed letting at time then called it and there agent fixed, attention of the to have it and from time to thereafter time lessee demanded balustrade be renewed repaired tenancy so, failed during and defendants to do child, her, fell small when the balustrade broke throwing whereby pavement her to a concrete below she suffered damages sought, express for which held that severe repairs binding covenant on the landlord and that to make jury facts made submissible case in tort. down,

A few months after the above decision handed same Klute, court, Marcheck case of for death of child fell an un action for who thru *5 hay opening in rooms chute a loft tenant’s

protected cover and opened, it was claimed the landlord and where ‘ ‘ questions sight in protect it, spring said: into connection with Other only lie con an action. is whether would such One it tract, being imposed by duty the the chute not the to cover mouth of allowing' stipulation. There are decisions

law in the absence of keep trespass on the case for failure tort in the nature of ’1 necessary pass stipulation: But the not find it court did case. particular question dispose this order on 618, 109 Brewing Co., 130 Mo. Lemp in Graff v. court, This S. found rule is “A statement of 1044, l. c. said: concise W. in Roberts opinion of following quotation this court from is law Cottey, App., 74 W. 887: ‘The well S. v. covenant the absence of effect jurisdiction in tfds to the settled during obligations repair premises no the landlord is under damages to his tenancy, nor liable in. course is repair tenant) failure to injuries resulting (the him (cid:127) obligations the In the of contractual premises. leased absence the- misfeasance, and not only for acts of his tenant is liable ’ -defendant, with us show The facts before nonfeasance. for knowledge floor, agreed as of the defective of the existence repairs, renting premises to make suitable contract for the elapsed injury occurred, a sufficient time when the In the rules performance this covenant. such state of case we judg .- .’’’ The just application, . considered without- sustaining a demurrer in the case was re ment trial court remanded; Hill, v. of Glenn versed 'and the cause was case strongly case, relied on defendants this handed opinion in three handed down its down weeks before court it called Lemp, had not been attention court, retrial, opinion. nor it in its On considered circuit again authority Glenn v. court the-demurrer-on the sustained supra. again appeal reported on case reached this court and is Brewing Company,-145 App. 364, Graff Lemp opinion: At l. c. 1006 the court said its former ‘‘We held promise repair of the 'landlord a character defect of dangerous safety-of it would be constant menace duty, negligent the tenant created a of which breach would Nothing constitute a tort. in the Glenn at variance with view, and, opinion still,’ since we are ‘of same it follows hold in sustaining must that the trial court erred the demurrer to ” petition. (K. Dailey In the Vogl C.), App. 261, Clemans, logic Thompson Md. criticised Ellison, which, he says, strongly in the first relied court re ported Brewing case of Graff Wm. Co., supra, Lemp J. l. c. 267: Thompson ‘‘We think clear v. Clemens and our great Graff v. Brewing Co., opposed weight authority are well, proceed sound reason will as we to show. the where a duty claimed, was also duty involved

651 apart from parties, relation law, by reason of the of arose court, Trimble- judges other of both of the contract.” they only clear that opinions, make it concurring Johnson, separate in grounds other than that on in reached agree the conclusion opinion quoted do of here portion discussed say they emphatically do opinion. Both of the assent to that not holding Lemp Graff v. opinion to overrule intend this not affirmed. doctrine there cases, supra, reiterate and reannounce the the St. clear that this court From the ease it is both above time, the doctrine Appeals at one were committed to Louis Court injuries would personal by a in tort for received tenant an action injuries consequence of the of the where failure lie alterations, repairs, landlord to make additions consideration, had, letting, which he the time of the for at But, 268 l. c. Paxton, make. in the case Kohnle “ S. peti 188 W. 155 l. In bar the c. the court said: at tort, negligence not active tions sound disclose such do independent support contract as will of this character. view, therefore, strong authority limiting of the trend of action in we such cases to suits for a breach feel impelled to plaintiffs remedy. hold have mistaken their may That much contrary, especially be and has been to the (100 of Willcox v. 46 well-reasoned case Hines Tenn. S. W. 41 Rep. R. A. 770), Brewing L. Am. St. Graff v. Co. (130 1044), S. we supra, W. do not hesitate to ad mit; but, considering actions, relationship the nature of the parties, regard general and the law in contracts, force and in these doctrine declared effect approved.”' quoted not language This approval Collett, speaking Supreme Court, recent case Lahtinen Bldg. Co., (2d) Continental

So far as have been to ascertain, able the last mentioned case is the last pronouncement, any on this subject, by appellate courts this State. specifically The cases last mentioned overrule Lemp cases, supra, and contrary cases, other and established the may law Missouri-that a ground not action in tort for landlord, personal injuries growing out of perform failure of duty, except, contractual course, duty where he also owes such a apart from the contract. He must sue bn his contract for the breach thereof; the suit damages regulated his measure of will by the law of contract. He based on grounded where cause of action is a breach contract. We have not overlooked the case of Shaw v. ardently urged by plaintiff here; but in opinion that case the installing a window negligence of defendant upon the rests court there install. He was (and agreed)

screen which he assumed act; decisions, negligently performing an under all the liable, a total liable not have been but would *7 obligation. the contractual Campbell, C., affirmed. concurs. judgment the trial court adopted Sperry, C., is foregoing opinion of PER CURIAM:—The All concur. affirmed. opinion court. The Corp. rel., Relator, Loan ex Home Owner’s State of Missouri Court, v. Hon. E. Jackson Bird, Daniel Circuit Respondent. 386. (2d) 110 S.W. County, Mo., Appeals. City November Kansas Court of O’Bryan for relator. Redick Burns & White