33 Cal. 341, Brewster v. De Fremery

Citation:33 Cal. 341
Opinion Judge:SAWYER, Judge
Party Name:MATILDA BREWSTER, as Administratrix of the Estate of John Brewster, Jr., Deceased v. JAMES De FREMERY and ALBERT MILLER
Attorney:Crockett, Whiting & Naphtaly, for Appellant. Campbell, Fox & Campbell, for Respondents, argued:
Judge Panel:JUDGES: Sawyer, J.
Case Date:October 01, 1867
Court:Supreme Court of California
 
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Page 341

33 Cal. 341

MATILDA BREWSTER, as Administratrix of the Estate of John Brewster, Jr., Deceased

v.

JAMES De FREMERY and ALBERT MILLER

Supreme Court of California

October, 1867

Page 342

[Syllabus Material]

Page 343

Appeal from the District Court, Fifteenth Judicial District, City and County of San Francisco.

COUNSEL:

Crockett, Whiting & Naphtaly, for Appellant.

Aside from any obligations resulting from the relation of landlord and tenant, we maintain that in the absence of covenants to repair, the defendants, as owners of the premises, were bound to keep them in a safe condition, and to prevent them from becoming a public nuisance. (Bac. Ab., Tit. Nuisance, A; Meeker v. Rensselaer, 15 Wend. 397; Surocco v. Geary , 3 Cal. 69; Myers v. Malcolm, 6 Hill, 292.) It is conceded that in the absence of covenants to repair, either by the landlord or tenant, the landlord, as between himself and the tenant, is not bound, simply by virtue of the relation of landlord and tenant, to repair. The tenant takes the building, subject only to his right to abandon it, and stop the rent, if it becomes unfit for use. That the tenant is bound to make what the law terms " ordinary repairs," to prevent dilapidation, but no others. But it is equally well settled, that the tenant is not bound to make what are termed " substantialrepairs." The law is, therefore, perfectly consistent. " Ordinary repairs" must be made by the tenant, and " substantial repairs" by the landlord. If either fails in his duty he is responsible for the damages caused thereby. Neither the landlord nor tenant is liable for damages caused by the neglect of the other to make repairs which by law it was his duty to make. (Taylor's Landlord and Tenant, Sec. 343; 1 Woodfall's Landlord and Tenant; 4 Kent Com. 110 and notes; 1 Moody & R. 173, 112; 6 Scott, 277; 3 Bingham, N. C., 4; 1 Watts & Searg. 532; 2 Car. & K. 186.) We think it is obvious that the landlord, in this case, would have been liable if the damage had happened to a third person and not the tenant.

We propose next to consider whether or not the liability of the landlord, being the owner of the premises, is varied or excused, because the party injured was the tenant from month to month, without covenants to repair. If it was not the duty of the tenant to protect the walls of this building--as it clearly was not--and if it was the duty of the owner of the building to keep the walls in a safe condition, to prevent them from becoming a public nuisance, it is difficultto see on what principle of reason or justice it could be maintained that the owner as such would be liable to a stranger and not to his tenant for the damage caused by his neglect. We place his liability, not on any obligation arising out of the relation of landlord and tenant, but on the general duty of the owner of the building as such, to prevent it from becoming a public nuisance. It appears to be a legal solecism to say, that whilst the owner is liable to everybody else for the damage caused by his neglect, he is not liable to his tenant, simply because he was his tenant. The...

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