The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-08-05

FiNcu iOi Dy tue RUE.
OPINION OF THE COURT By JUDD, c. J.
The amended declaration states a
case OF assumpsit upon a written
agreement whereby the defendants
undertook to build for the use and
occupancy of the plaintiffs building
to be used as retail store, and to
construct 1T In a manner fit and suit
able for the plaintiffs occupancy as
such retail store; that defendants
rendered the building to plaintiffs
and represented it to be built and
finished In a manner fit and suitable
for plaintiffs occupancy as such
store; the plaintiffs depending upon
the truth OF such representations &C.
copied and occupied the building,
and have continued to occupy it
under the written agreement and of
lease made in pursuance thereof;
that defendants failed and neglected
to perform their agreement with
plaintiffs, In that they failed to make
the building, roof and the skylight
thereof fit and suitable to turn and
keep out the rain and other water
that fell and flowed upon said roof
and skyGght, and in consequence of
such neglect and faulty construction
the rain water was admitted through
the skylight and damaged plaintiffs
goods.
This declaration was demurred to
on the ground that it set forth no
cause of action. Judge Cooper of
the First Circuit Court sustained the
demurrer, to which exceptions are
now brought to this Court.
In the former case between these
parties we reversed the judgment for
the plaintiffs and ordered new trial
on the ground that the declaration
was for trespass in case by tenant
against landlord, for gratituous re-
pairs of tenement unskillfully and
negligently done, and the proofs and
findings of fact supported an action
upon a covenant that the building
use of it by plaintiffs, and there was
a variance between the declaration
and proofs. In the course of the
decision occurs this remark: "The
evidence fully sustains the finding of
fact-(that the leak was owing to the
original faulty method of construct
ing the skylight), and If the declara-
tion had been for damages for breach
of the agreement to build, or upon a
covenant express or implied that the
building should be finished, fit and
suitable for plaintiffs intended use,
this evidence would apparently have
justified a judgment against defend
ants" This was comment on the
character and effect of the evidence,
and though it was delivered without
much consideration, we did intend
not to express any opinion that the
agreement to build on the lease con-
tanned a covenant that the building
should be fit and suitable for the
plaintiffs use, and we now find that
neither the agreement nor the lease
contain any express covenant that the
building was to be fit and suitable for
plaintiffs use and occupancy. Is
there any implied covenant of this
character? This question IS now
raised by the demurrer. Exhaustive
discussion of the landlords liability
to the lessee for injuries can be found
in / Taylor's Landlord d Tenant,
Secs. 175A, 1927, 32S and 3S2. Section
l75A: "As the lessor does not war
rant the condition of the premises,
and the tenant, because he can in
spect them, assumes the risk of their
state; for any injury suffered by him
during his occupancy by their defec-
tive condition, or even faulty con-
struction, he cannot make the lessor
ansWerable, unless there was mis-
representation, active concealment,
or perhaps a total inability on the
tenants part to discover the defect
before entry" In Brewster VS.. De
Fremery, 80 Cal, 341, the Court de
MED the liability of the lessor to his
tenants administrative for damages
for his death occasioned by the fall
ing of the walls of the demised tene-
ment, the lease containing no coven-
ant to uphold or keep the premesis
in repair, and the walls falling by
reason of their foundations being
undermined by the owners of the
adjacent lot, of which the lessor had
timely notice, and adopted no pre-
ventive measures. The Court cite
approvingly Howard ys. Doolittle,
3 Duer, 464 IN. ", where it is
laid down that landlOfd Is
in no case bound TO repair, unless
by force of express covenant or
contract, and that, even wkare a
building is let for special purpose,
and its use and occupation for any
other is in terms prohibited, there is
no implied contract or warranty on
the part of the landlord that the
building shall be, or continue to be-,
lit for the purpose for which it is de-
missed. In Jaffe VS.. Harteau, So n.
Y. 40I, the Curt say, - hare is NO
reason for hoid,r the Lessor, in the
absence of any agree 1T or Franc,
liable to the tenant for the present
or future condition of the premises,
that would not be equally applicable
60 n similar liability sought to be
imposed by n grantee In fee upon
bis gTautOr."
IN I.ooney ". Mclean, 129 Mass.
80, it Hza held that ia the case Of
Bradford srd 'e7e0t There is no I'M
: s,i:=-: sarta.iy ~ tka pat OF 'n5