Kahn v. Love

Upton, J. The complaint is silent as to the terms of the lease; it contains on that subject but the single allegation that the plaintiff and his two brothers “used and occupied the same as tenants of the said Lewis Love, and paid him therefor a stated sum as rent.” The complaint contains the following : “13y the laws and ordinances of the city of Portland it was made the duty of the defendant to make such repairs as might be necessary for tlie safety of travelers and persons traveling along and upon said street in front of said lot.” It is not to bo presumed that the lease contained any covenants not expressly charged in the complaint. It does not clearly appear whether or not the defects in the awning existed at the time the tenants took possession, and I am not aware that it is a material point in tlie case. “It is not in the power of the tenant to make repairs at the expense of his landlord unless there be a special agreement between them authorizing him to do this. “ The tenant takes the premises for better or for worse, and cannot involve the landlord in expense for repairs without his consent.” (Mumford v. Brown, 6 Cow. 475.) A tenant has no remedy against a landlord for suffering premises to be out of repair, unless the landlord has agreed to keep it in repair. Unless there be an express agreement to that effect, the tenant, whether for life, for years, or at will, cannot compel him to repair. (Howard v. Doolittle, 3 Duer, 464.) For aught that appears in the complaint, the improper condition may have been the fault of the plaintiff. [208] The statement in general terms that the plaintiff exercised due care and caution on that particular occasion is not sufficient. The plaintiff in an action for damages occasioned by the defendant’s negligence, must so frame-his complaint as not to leave an inference that he was guilty of negligence that contributed to the injury; and the facts must show affirmatively that the injury was caused by the negligence of the defendant. The demurrer is sustained. (1) Footnotes [(1)] 1. The plaintiff amended his complaint, and the case being tried by jiuy, the defendant had a verdict.