Eblin v. Miller's ex'r

JUDGE COFER delivered the opinion of the court. The appellant alleged, in substance, that he occupied certain premises as tenant of R. N. Miller; that he rented and [372] paid rent by the month; that a stairway leading to a back, porch on the premises was out of repair in consequence of natural wear and tear and the decaying of the timbers; that, he notified Miller that he would abandon the premises and cease to be his tenant unless he (Miller) would repair the-stairway; that Miller promised to have it repaired; that he - would send a man to make the repairs, and relying upon that promise, he (appellant) agreed to remain in the house-as tenant; that Miller sent a carpenter to repair the stairway, who pretended to repair it, but did the work so negligently and unskillfully that, when shortly thereafter the appellant: stepped out upon the porch and stairway, the banisters gave-way, in consequence of which he was precipitated to the ground, twelve feet below, and his arm broken, and his person otherwise seriously injured. Miller having died, this suit was brought against his executors. Issues were formed and a trial had, which resulted in a verdict for the defendants under a peremptory instruction. The court, upon motion, granted a new trial, and the-defendants excepted and filed their bill of exceptions. A second trial was had, which resulted in a verdict for the plaintiff! The defendants moved for a new trial and in arrest of judgment. The court overruled the motion for a new trial, but sustained the motion to arrest the judgment, and dismissed the petition. The plaintiff appeals, and the defendants cross-appeal and. question the correctness of the action of the court in granting the defendants’ motion for a new trial, and in denying; the plaintiff’s motion. [373] If the motion in arrest of judgment was properly sus'tained, it will be unnecessary to consider any other question .in the case. The appellant does not claim that Miller was bound by law or by the contract of. renting to repair the stairs, or that he was bound otherwise than on the promise alleged in the petition. It is therefore material to inquire whether 'there was any consideration for that promise. This court has decided that the mere promise of a landlord to repair the demised premises, based alone on the ■agreement of the tenant to relinquish his expressed purpose 'to abandon them before the end of his term, cannot be .supported. (Proctor v. Keith, 12 B. Mon., 252.) The ground of the decision is, that the tenant is bound to retain the premises during the term, whether the landlord repairs them or not, and that his agreement to continue the tenancy furnishes no consideration for the promise to repair. The appellant in this case was bound to retain the premises during the current month, and unless he agreed to continue his tenancy for a longer time, the case falls within the ■rule laid down in the case supra. He alleges that he agreed to remain, but does not say for what length of time. All 'he alleges may be true, and yet it may also be true that he •did not bind himself to retain the premises a single day longer than he was already bound to retain them. It seems to us, therefore, to be clear that the petition fails to show any consideration whatever for the promise ■made by Miller. But it is alleged that he sent a carpenter to make the necessary repairs, and that the carpenter entered upon the -work, and pretended to do it, but did it negligently and. [374] unskillfully, and that the case falls within the rule that one who agrees to do work for another, and actually enters upon the performance of his undertaking, is bound to perform it according to the terms of the agreement, even though the-agreement is without consideration. (McGee v. Bast, 6 J. J. Mar., 455.) This doctrine was applied by the supreme court of Massachusetts to a landlord who, at the solicitation of the tenant, gratuitously undertook to make repairs upon the demised premises. (Gill v. Middleton, 105 Mass., 470.) In that case the landlord undertook to make the repairs' himself, but on account of a lack of proper skill or care in doing the work, the repairs proved insufficient, and the wife-of the tenant was injured in consequence. The court instructed the jury in substance, that if the-landlord undertook to make the repairs, and did the worlc himself, and that, in consequence of the want of ordinary-skill or care in the workmanship or in the selection of material, the injury occurred, the law was for the plaintiff. On. appeal that instruction was held correct. In this case the allegation is, that the landlord agreed to' have the repairs made by a person regularly employed by-him to repair his houses, and the uncontradicted proof on the trial was, that he sent that person to do the work. There was neither allegation nor proof that the person, employed was unskillful, or that he was not a reliable and', suitable man to do the work. It was alleged, however, that, the work was done in an unskillful and grossly negligent, manner. The question then arises whether, assuming it to be true-that the work was so done, the landlord is liable, without regard to the further question whether the workman em [375] ployed was or not such a' person as a man of ordinary prudence and care would have employed to do such work. He did not agree to do the work with his own hands, or to supervise its execution, nor did he - pretend to do either. His agreement was to have the work done by another person. As we have already seen, the agreement was wholly gratuitous, and he was only bound to do properly that which he undertook to do, and he did that if he sent a suitable person to do the work, and is not responsible for that person’s negligence or unskillfulness. If there was negligence in employing the person sent to-do the work, the burden was on the plaintiff to allege and prove the fact. It was not enough to allege and prove that the work was negligently or unskillfully done. That a person was guilty of a single act of negligence, ‘or did one piece of work in an unskillful manner, is not enough to authorize a jury to find that his employer was guilty of negligence in employing him. In any view of the case, it seems to us the appellant failed to make out a case upon which a jury would have been authorized to find for him, and consequently his rights were not prejudiced, and the judgment is affirmed.