Blake v. Ranous

Moran, P. J. We have been referred tono cases and have been unable to find any which supports the theory of a landlord’s liability, set out in the amended declai-ation and announced in the instruction given to the jury to which exception is taken. “ To the tenant, the landlord is not liable for a nuisance existing on the premises at the time when the lease was made, nor for the defects therein, unless the defect is latent and the landlord has been guilty of fraud or actual deceit in the letting.” Wood’s Landlord and Tenant, 921, and cases there cited. There is no implied contract on the part of a landlord that the leased premises are tenantable or that they will continue so during the term, nor is he bound to repair unless he lias expressly agreed to do so in the lease or contract of hiring, and a promise to repair, made after the lease is entered into, is a mere nudxtm pactum, and no liability exists for a failure on his part to make such repairs. Wood’s Landlord and Tenant, Sec. 382, Lucas v. Cutler, 104 Ind. 81; Fisher v. Lighthall, 4 Mackey, 82. In an action against a landlord for injuries resulting from the unsafe condition of the building leased or any of its appendages, the declaration should state facts which affirmatively show the landlord’s duty or obligation to make repairs. The duty does not spring from the relation of landlord and tenant and will not be presumed but must be both stated and proved. Kahn v. Love, 3 Oregon, 206. Both the amended declaration and the instruction given assert the duty as based upon the mere fact of letting the premises alone. Such a doctrine is decidedly opposed to all the cases. There may be passive concealment by a landlord of some matter which, under the circumstances, it would be his legal duty to disclose, and in such case he may be made liable for the result as for a negligent act from which injury results, as where tenements were let which were known to the landlord to be infected with small-pox, a fact which no examination which the tenant could make would have disclosed. Minor v. Sharon, 112 Mass. 477; Cesar v. Krautz, 60 N. Y. 229. Brit a defect in the plumbing of a building is like a defect in the flues of a chimney, or a leak in steam pipes, or a fault in the heating apparatus. As was said in Carson v. Whiting, 12 Daly, 408, “these imperfections can not be discovered, perhaps, by any examination that the intending tenant can be expected to make, but yet it has never been held that the landlord is bound, under the penalty of fraud, to disclose such defects, even though he be aware of them. The tenant is as much bound to make ordinary repairs to the plumbing, as he is to make any other ordinary repairs in a house that he imprudently leases whilst it is out of order.” If a landlord by artifice or contrivance prevents the intending tenant from discovering defects, or if he fraudulently misrepresents the condition of the building in some material particular wherein lie claims special knowledge, knowing that the tenant relies on his representation, and not on investigation or examination, no doubt the tenant may rescind the contract of lease, and vacate the building upon discovering the hidden defect, or the falsity of the representation, and may defeat upon such facts any claim for rent based upon the lease. "Whether the tenant may continue to occupy the premises after circumstances have arisen, which would put a prudent person on notice that the representation was false, and then recover damages for sickness caused by the bad condition of the premises, is a question which we are not called upon at this time to determine. The amended declaration and the instruction which we are discussing are not based on that phase of the case. ¡Neither are the}' grounded upon the theory that the landlord has maintained a nuisance on premises over w'hieh he and not the tenant had control, and from which the tenant suffered injury. The case of Marshall v. Cohen, 44 Ga. 489, and cases similar in principle cited by counsel for appellee, are wholly unlike the case stated in the amended declaration, and do not support the instruction. It is unnecessary to discuss other instructions, or other alleged errors in the case. For the errors pointed out the judgment will be reversed and the cause remanded to the Circuit Court. Reversed a/nd remanded.