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

loe dDn IuOge Tor hImSeIf-Dnt tuIS
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, 81 y. H 426, is
an instr uctive case. Here the Court
held that there is no implied war
ranty on the part of 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 say-the plain
tiffs contend that "the defendants
must be held liable in this action by
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
f. @. L., 271; Moo. * r., 112; 4 @.
81 p, 65; 8 G. & p, 378; 4 n. Y, 217.
But the weight of authority Is de
ci6adlv tho other wav
Smith, l.. & T., 262; Woodfalls, l..
g. T., 1913 Taylor, l.. 81 T., 3S1 L
Pars. Cont, $50; Wash, r. p. I'D
ed.), 473; II M. & W., 81; 81 Beav,
$50; l.. r., 6 Exch., 217 7 Hill, SO;
9 Cush., 80 and 242; LOG Mass, POP;
45 n. H., SO. 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 a 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, 4S Me-, 317, holds that
sin 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 QS90), the Court say:
1t is we'll settled that there is no
implied covenant in a lease Of this
kind Ga dwelling house) that the
premises were fit for haSitation. The
doctrine caceat enaptor applies, and the
rule is the same in reference to
lease of dwelling house as to a 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,
9 Cush, 99). If a 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.. 81 T., Sec. 1872, sums
up as follows: There is no implied
warranty on the letting of a house
that it is safe, well built or reason
ably fit for habitation; citing Cleves
Va. Willoughby, Z Hill, SO, where it
is said that ''the doctrine of implied
warranties relates to the title and not
to the quality of the premises"
Having found that there was no
express warranty either in the agree
ment to lease or in the lease be-
tween the parties that the store was
to be safe, we'll 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
tiffs can in this form of action recover
damages to their goods occasioned
by rain water coming through de-
fectively constructed skylight. We
therefore override the exceptions.
We have not considered it necessary
to discuss at length the point made
by defendants that the exceptions
should be dismissed because not sub
mitted to opposing counsel before
being allowed to examine the bill,
as required by Rule Is co. of the
Circuit Court. We regard this rule
as directory and, generally, the Court
would refuse to sign the bill until
opposing counsel had approved of it.
If the Court, as was probably the
case here, signed the bill inadver-
tently, the proper course would be to
withdraw the bill and allow opposing
counsel the opportunity to inspect
the bill provided by the rule.
A. p. Peterson for plaintiffs; 4. S.
Hartwell for defendants.
Honolulu, July %, 1893.
Japanese Dentistry.