The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-04-28

nroofs and the Judgment is reversed.
OPINION OF THE COURT By JUDD, CD
The declaration in this case is IN
.Trespass in Case" and corresponds
very nearly with the form given IN
Chitty's Pleadings, p. SGT, for de.
claration in tort, "By tenant, not
bound to repair, against landlord
who had commenced repairing, for
not doing repairs in a proper man.
ner." After stating that plaintiffs
claim OF defendants, $1,000, for dam
ages resulting to them for injury
done by defendants to the property,
/. e., the goods, wares and merchan-
disc, chattels and effects, OF plaintiffs
in April, 1892, in the store OF plain
tiffs on Fort street, Honolulu. the
declaration proceeds, "for that plain
tiffs we're in April, 1892, tenants to
the defendants of certain messuage
situate on the Waikiki side OF Fort
street, in Honolulu, for term OF
wears, and the said messuage wa's
dilapidated and out of repair and in
part not fit for occupation, and the
defendants, on or about April, 1897,
entered upon and in part performed
certain repairs necessary and proper
to be done, and which the plaintiffs
we're not bound or under any just or
legal obligation to do or perform;
vet the defendants did not use due
care, skill or diligence in performing
or completing the said repairs, but
wronpfully neglected and refused 80
to do, whereby at said times the said
messnage was greatly and unneces-
sarily Injured and damaged and its
use and occupation impaired and the
goods, wares and merchandise, chat
tells and effects of plaintiffs greatly,
and unnecessarily injured, damaged
and lost, to the damage of the plain
tifs in the sum of $1,000" etc.
The second count is similar and
AYERS particularly that defendants
did not use due care, skill or dill
gence in performing and completing
the repairs Ia leak in the roof J, and
the roof leaked and rain and water
came into the said messuage and
upon the goods, etc.
The case was heard by Bickerton,
j., who, the jury being waived, rem
dered Judgment for plaintiffs for
$430.1O, to which, as well as to GER
tain rulings made during the trial
exceptions are taken to this Court
by defendants.
After the evidence of plaintiff
Gum was in, and the lease unde,
which the plaintiffs hold the tene
ment in question had been introduced
and filed, written agreement wa!
rendered by plaintiffs between then
and defendants for the building ant
leasing of the said tenement. Thi
was admitted against defendants
objection.
The declaration In this case bein,
for defendants negligence in repair
ing the leak in the roof, we fail t
see how the antecedent contract t
erect the building was relevant. lib
lease already in evidence was tn
last contract between the parties, an
it created the relation between the,
Of landlord and tenant, and that Ws
all that could be shown between thel
in accordance with the declaration
If the action had been based upon
covenant of defendants either e.
press or implied, that the building
question was fit and suitable, ar
was to be kept fit for the intendt
use Of it by plaintiffs, the agreemel
to build and lease would have BET
competent evidence. The form
the action chosen is not based upt
any obligation of defendants to I
pair, and none is averred in the d
claration. The Court below ina
vertently misconceived the actio
In its opinion it says This is
action to recover damages results
to plaintiffs from defective skylig
in the store leased by them from {
fendants," and, after reciting t
agreement to build and lease and t
lease thereafter made, and that
plaintiffs went into possession, say
"Soon after it rained, and the 81
light leaked, damaging some goo,
Defendants agent was notified, q
some work was done on the 81
light, but when the next r,
came it leaked worse than ey
and a large quantity of got
were damaged. More work was dc
at various times on the said skylig
and eventually it was removed an
new one put in. on new plan, raj
above the roof. From that time
there has been no leak" &
seems to me that this case cannot
treated in the same way as If this
been an old building that might
quire repairing. This was
building and the plaintiffs were
first occupants and had q RICH,
presume that roof and skylight v
tight and water proof. It would
pear from the evidence that the
struction of this skylight was ia,
and could never have been nc
water tight, and therefore the br
ing could not be considered {
plete and finished" The evids
fully sustains this finding Of fact,
II the declaration had been for {
ages for breach of the agreemen
bulid, or upon covenant expires
implied that the building shoul
finished, fit and suitable for plain
intended use, this evidence would
parently have justified a judg,
against defendants.
The counsel for plaintiffs i
duced evidence to sustain a ca
implied covenant on the part
lessor that the building shoul