Gregor v. Cady

Virgin, J. Tn August 1887, the defendant leased in writing to the plaintiff a second story tenement including a shed and privy attached to Avhicli access was had by a bridge from the kitchen. Subsequently, but prior to March 1888, the attention of the lessor was called to the rickety condition of some portion [136] of the premises especially the bridge; and he with a carpenter made repairs of the bridge. On March 14, 1888, while the plaintiff was in the privy, the floor gave way whereupon she in falling seized hold of the door-stool to prevent herself from going down several feet into the vault and was severely injured; for which the jury returned a verdict for $825. The defendant, without finding any. fault with the amount of the verdict, seeks to have it set aside as being against law and evidence. It is common knowledge among the members of the profession that no duty on the part of a landlord to repair leased premises arises out of the relation subsisting between him and his tenant; and in the absence of any covenant on his part in the lease that the premises are in proper repair, he is under no legal obligation to make repairs; but the tenant, on the principle of caveat emptor, and in the absence of any fraud on the part of the landlord, takes them in the actual condition in which he finds them for better and for worse. Moreover, any subsequent promise by the landlord to repair is without consideration and no action of assumpsit will lie for his non-performance of such a promise. Libbey v. Tolford, 48 Maine, 316. But while it is generally true with respect to gratuitous contracts that for non-feasance no action lies, still for misfeasance an action on the case may be maintained, inasmuch as “the confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it.” Smith’s note in Coggs v. Bernard, Smith Lead. Cas. (6th Am. Ed.) 355. “A distinction exists between non-feasance and misfeasance, — between a total omission to do an act which one gratuitously promises to do and a culpable negligence in the execution of it. ® * If a party makes a gratuitous engagement and actually enters upon the execution of the business and does it amiss through the want of due care by which damage ensues to the other party, an action will lie for this misfeasance.” 2 Kent Com. 570, Thorne v. Deas, 4 Johns, 96-99; Balfe v. West, 13 C. B. 466, (76 E. C. L.) Elsee v. Gatward, 5 T. R., 143, 149, 150; Wilson v. Brett, 11 M. & W. 113, 115; 16 Am. Jur. 261, et seq. [137] This established principle is applicable to the case at bar. And although the lessor’s attention, after possession taken by the lessee, was called by the latter to the rickety condition of a portion of the premises and he thereupon agreed to repair it, still he was under no legal obligation to fulfill bis promise. But wben upon tlie request of the lessee the lessor gratuitously undertook to make tbe repairs and negligently and unskilfully performed the work, whereby the lessee was subsequently injured, tlie lessor became liable by reason of bis misfeasance, provided be undertook to repair the particular part of the premises to which his attention was called and where the injury occurred. Gill v. Middleton., 105 Mass. 477, which is on all fours with the ease at bar. Such was the substance of the charge of the learned judge on this point. But the defendant contends that no complaint was made in regard to the privy and that she did not undertake to repair that, —but did repair the bridge. The presiding judge called the attention of tbe jury to this question of fact and left the question to them to decide, which issue they must have found for tlie plaintiff. We think the evidence preponderates in behalf of the defendant: but there is evidence on which the verdict can rest. Motion overruled. Peters, C. J., Walton, Emery, Foster and Haskell, JJ., concurred.