The Hawaiian gazette., 1893-08-08

I
to a similar liability sought to be
imposed by grantee in fee upon
his grantor."
In Looney VS.. Mclean. 129 Mass
80, it was held that in the case OF
landlord and tenant, there is no In.
piled warranty on the part of the
former that the demised premises
are tenantable or in good condition,
the tenant being supposed to exam
inc and Judge for himself-but this
rule was held not to apply to stair
cases, passage ways, doorsteps, ETC.,
that were meant for general use by
all the tenants and no one of the
tenants responsible for the repairs
of such places.
Scott VS.. Simons, "a N. II. 1926, is
an insh uctive case. Here the Court
held that there is no implied war
ranty on the part of a landlord of
leased premises that they shall be fit
for use and that there is no implied
contract on the part of a landlord of
leased premises that he will keep
them in repair. In discussing these
principles the Court ssy-the plain
tiffs contend that "the defendants
must be held liable in this action by
virtue of the relation of landlord and
tenant existing between the parties"
But what obligation did that rela-
ton impose on the defendants? The.
plaintiffs might have declined to
occupy the premises unless the de-
PENDANTS would expressly covenant
that they were suitable for use;
but they saw fit to enter and
occupy without any express
covenants. There are, it is true,
respectable authorities which hold
that where premises are let for the
purposes OF occupation, there is an
implied condition that they shall be
fit for use; citing IL NJ. & W., 5; 16
E. G. L., 271; Moo. & R., liz; 4 @.
& P, 65; 9 G. & P, 37S; An. Y, 217.
But the weight of authority is de-
cidedly the other way.
Smith, L. & T., 262; Woodfalls, L.
& T., 1893 :; Taylor, L. & T., 3S1 1
Pars. Cont, $50; l Wash, r. P. I'D
ed), 473; II NJ. & W., 81; "a Beav.,
$50; L. r., 6 Exch, 217 Hill, SO;
8 Cush., SO and 242l; 1O6 Mass, 2O2;
As N. a., Sc. 1t is very clear upon
the authorities that the defendants,
in the absence of proof Of actual
fault on their part, are not liable in
this action by virtue of any implied
warranty that the plaintiffs goods
should not be injured by the bursting
of drain pipe. "The defendants
might be liable to their tenants, or to
strangers, for subsequent injuries, if,
after notice of the breach they were
negligent in not repairing it, but we
think not to anyone who, being aware
Of the defect, unnecessarily exposed
his goods to injury by it." Libbey
VS.. Tolford, As Me-, 81, holds that
Sin a lease of a store there is no i'm
piled warranty that the building is
safe, we'll built, or fit for any par
ticular use." In Stevens VS.. Peirce,
Isl Mass, 200 QS9O), the Court say:
{" 1t is we'll settled that there is no
implied covenant in a lease of this
kind Ia dwell1ng-house) that the
premises were fit for ha5itation. The
doctrine caUeat emptor applies, and the
rule is the same in reference to
lease of dwelling house as to con
veyance of real estate of any other
kind. The plaintiff, therefore, has no
cause of action growing out OF the
contract by which he held the pre-
misses. Nor can he, for the purpose
of claiming damages for breach of
the contract, prove that the defend
ant represented to him, when he
leased the house that it was in good
sanitary condition such evidence
is incompetent, as tending to
vary and enlarge the written
contract Getting Dutton VS.. Gerrish,
8 Cush., 89). ia wrong was done
the plaintiff, as he alleges, his only
remedy was in tort, for fraud and de-
ceit in inducing him to take the lease,
or for negligence in failing to inform
him, if by reason Of a concealed de
feet which could not be readily dis
covered, and which was known to the |
defendant and unknown to him, the |
house was dangerous to those who |
might occupy it."
l Taylor, L. & T., Sec. 382, sums
up as follows: There is no implied |
warranty on the letting of house
that it is safe, we'll built or reason
ably fit for habitation; citing Cleves
VS.. Willoughby, Z Hill, SO, where it
is said that ''the doctrine of implied
relates to the title and not
to the quality of the premises"
Having found that there was no
express warranty either III the agree
ment to lease or in the lease be
tween the parties that the store was
to be safe, well built and fit for use
as such, and, holding that no such
warranty is implied from the relation
Of landlord and tenant between the
parties, we do not see how the plain
lifts can in this form of action recover
damages to their goods occasioned
oy rain water coming through a de-
'ectively constructed skylight. We
therefore, override the exceptions.
We have not considered it necessary
o discuss at length the point made
~ defendants that the exceptions
hor11 bo diop,iaeo1 boooreo ~ oil