The Hawaiian gazette., 1893-08-08
OPINION OF THE COURT BY JUDD, c.

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 a retail store, and to
construct it 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 manner fit and suitable
for plaintiffs occupancy as such
store; the plaintiffs depending upon
the truth Of such representations &C.
cepted and occupied the building,
and have continued to occupy it
under the written agreement and of
a 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 skylight, 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 ne
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 q 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
was fit and suitable for the intended
use of it by plaintiffs, and there was
q variance between the declaration
and proofs. In the course of the
decision occurs this remark: 1.-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-
ton 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 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 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 1 Taylor's Landlord & Tenant,
Secs. 175A, 1927, 1928 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
he cannot make the lessor
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 administrators 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
of their foundations being
by the owners of the
adjacent lot, of which the lessor had
timely notice, and adopted no pre-
7entive measures. The Court cite
approVingly Howard VS.. Doolittle,
3 Duer, 464 IN. ", where it is
aid down that a landlord is
n no case bound to repair, unless
1y force of express covenant or
contract, and that, even where a
is let for special purpose,
and its use and occupation for any
other is in terms prohibited, there is
10 implied contract or warranty on
he part of the landlord that the
shall be, or continue to be,
it for the purpose for which it is de-
missed. In Jaffe VS.. Harteau, Sc n.