Adler v. Miller

Decision Date07 June 1928
Docket Number6 Div. 479.
Citation120 So. 153,218 Ala. 674
CourtAlabama Supreme Court

Rehearing Granted Feb. 2, 1929.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages by Mrs. W. W. Miller against Ike Adler. From a judgment for plaintiff, defendant appeals. Reversed and remanded on rehearing.

Leader & Ullman and David R. Solomon, all of Birmingham, for appellant.

W. A Denson, of Birmingham, for appellee.


The count on which the trial was had and judgment rested was ex contractu. W. U. T. Co. v. Littleton, 169 Ala. 99 102, 53 So. 97; M. L. I. Co. v. Randall, 74 Ala. 170; White v. Levy, 91 Ala. 175, 8 So. 563; Postal T. C. Co. v. Ford, 117 Ala. 672, 23 So. 684; Blythe v. Enslen, 203 Ala. 692, 85 So. 1. The rule thus tersely expressed and adhered to in this jurisdiction is: If the cause of action given expression in the complaint (1) arises from a breach of promise, the action is ex contractu, or (2) if that cause of action arises from a breach of duty growing out of the contract, it is in form ex delicto and case. See illustrations of the distinction contained in Wilkinson v. Moseley, 18 Ala. 288, 290, 291; L. & N. R. Co. v. Robinson, 213 Ala. 522, 105 So. 874; White v. Levy, 91 Ala. 175, 8 So. 563.

As applied to the relation of landlord and tenant and liability for injury to the latter from defects in the premises, where there was an express agreement to repair, the case of Hart v. Coleman, 201 Ala. 345, 78 So. 201, L. R. A. 1918E, 213, declares the rule of this court. In that case the holding was that, where the promise of a landlord to a tenant by the month to repair the porch was under the latter's threat to move unless such repairs were made, such promise was founded on a sufficient consideration; and the landlord, being notified or observing that the floor of considerable height was rotten in front of the door, failed after such promise to repair, and the tenant receiving injury by a fall through such insufficient and unsafe flooring was permitted to recover damages in an action ex contractu. In Smith v. Hallock, 210 Ala. 529, 98 So. 781, is declared the rule when the action is ex delicto, and, "in the absence of a covenant to repair," the rule is that of the common law-"the lessee's eyes are his bargain." Hallock v. Smith, 207 Ala. 567, 93 So. 588; Brown v. Dwight Mfg. Co., 200 Ala. 376, 76 So. 292, L. R. A. 1917F, 997; Moore v. Weber, 71 Pa. 429, 10 Am. Rep. 708; Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548; L. R. A. 1918E, p. 218 et seq., for the general authorities; L. R. A. 1916D, 1227; 34 L. R. A. (N. S.) 805. The decision in Hart v. Coleman, 201 Ala. 345, 78 So. 201, L. R. A. 1918E, 213, is said to be out of line with the weight of general authorities. L. R. A. 1918E, pp. 219, 221.

In 43 A. L. R. 1494, the subject is thus adverted to in the extended note:

"It is not infrequent that the self-interest of landlords will prompt them to do many things to their property during the term which they are not obligated to the tenants to do, to improve the property or prevent dilapidation of the buildings, and because of this fact, and not because of the recognition of any obligation to the tenant to keep the premises in repair, they often state to their tenants that they will make the repairs needed; but this does not make them covenantors to repair, or devolve upon them liability for failure to make repairs, either properly or at all.
"Where by the terms of the lease the landlord has not the obligation of repairing the premises, a promise made by him during the term to make repairs, or lay out money in having the needed repairs made, must be supported by some new consideration to be valid; otherwise, it is considered a nudum pactum, even though the repairs may benefit his reversionary interest. *** Donnelly v. House (1909) 160 Ala. 325, 49 So. 324; Hart v. Coleman (1917) 201 Ala. 345, L. R. A. 1918E, 213, 78 So. 201. ***
"It is stated as a principle in Hart v. Coleman (1917) 201 Ala. 345, L. R. A. 1918E, 213, 78 So. 201, that 'a promise made by the landlord to repair the rented premises, made pending the tenancy, is without consideration, a nudum pactum, and will not support an action, as the alleged promise was made during the time in which plaintiff [lessee] was already obligated and bound for the payment of the rent."'

And the case of Hart v. Coleman, supra, has been cited with approval in the more recent decisions in Byars v. James, 208 Ala. 390, 393, 94 So. 536, and Frazier v. Riley, 215 Ala. 517, 520, 111 So. 10, and there is analogy in Mudd v. Gray, 200 Ala. 92, 75 So. 468.

In the Hart-Coleman Case, the term of the lease was by the month and the threat was to remove at the end of such period. The promise to repair was the consideration to the tenant to remain and thus was the new consideration to the landlord for the extended term of the relation of the parties; the failure to repair and resulting injury was within the contract for such extended tenancy, and recovery was sustained. That is to say, as a part of the contract of rental (the remaining in the premises for another period) by which plaintiff re-rented and remained in possession of the house, the defendant agreed to repair or remove the defective condition in question, and the failure to repair per contract was the proximate cause of the injury and damages sought.

The count on which the trial was had was free from most of the grounds of demurrer directed thereto. It averred the "plaintiff, while a tenant of the defendant and as such tenant in possession of the house and lot," specifically described, was injured because a "part of said premises was so decayed and rotten as to give way under the weight of plaintiff's body and precipitated her to the ground," etc. "Plaintiff avers said injuries were proximately caused by the negligence of the defendant, which negligence consisted in this, as a part of the contract of rental by which plaintiff rented said house the defendant agreed to repair said house and remove said defective condition which proximately caused said injuries, and defendant negligently failed to make said repairs and negligently caused plaintiff to be precipitated to the ground." The grounds of demurrer among others, are that the count fails to allege whether the contract was "verbal or in writing," and fails to show there was any consideration for the defendant's agreement to repair and remove said defective condition. This should have been disclosed by the pleading. Byars v. James, 208 Ala. 390, 94 So. 536; Prudential v. Kerr, 202 Ala. 259, 80 So. 97; Hart v. Coleman, 201 Ala. 345, 78 So. 201, L. R. A. 1918E, 213; Malone-Beal Merc. Co. v. Greer, 169 Ala. 543, 547, 53 So. 810; Newton v. Brook, 134 Ala. 269, 273, 32 So. 722; B. R. L. & P. Co. v. Littleton, 201 Ala. 141, 147, 77 So. 565; Moore v. Williamson, 213 Ala. 274, 277, 278, 104 So. 645, 42 A. L. R. 981; Jefferson Dairy Co. v. Williams, 215 Ala. 559, 112 So. 125.

The evidence of defendant clearly supplies the fact that the renewal was by parol agreement, and that of plaintiff was that the consideration for the continued tenancy beyond the term was the accession of defendant's agent to make the repairs in question in response to tenant's threat to surrender possession and vacate at the end of the term; and that the injury occurred within the renewed or extended term. Thus there is application to the ruling on demurrer to the complaint for the rule of Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929; Jackson v. Vaughn, 204 Ala. 543, 545, 86 So. 469. The omitted allegations were proved and considered as were the jury duly instructed.

The written lease for the former term was the subject of modification by parol as extending to the new or renewed term, Moore v. Williamson, 213 Ala. 274, 104 So. 645, 42 A. L. R. 981. The jury were sufficiently instructed as to this.

The evidence of Miller brings the facts of this case within the purview of the decision in Hart v. Coleman, supra, and presented an issue of fact for the jury as to the contract for repairs, and of the agency of Stillman for defendant, Adler. He said, on the question of agency: "Mr. Stillman is the agent of Mr. Adler in collecting these rents. I know that to be a fact."

This, with his other testimony, carried the case to the jury on both phases of the evidence. The contract to repair before the beginning of the time or new term in which the injury was sustained, the agency for Adler through and by Stillman, and as to his authority in making the agreement for the required repairs are questions for the jury. Such facts of agency vel non and authority thereof are usually questions for the jury. Roberts & Son v. Williams, 198 Ala. 290, 73 So. 502; Insurance Co. v. Williams, 200 Ala. 681, 77 So. 159; J. C. Lysle Mill Co. v. N. Ala. Gro. Co., 201 Ala. 222, 77 So. 748; Pacific Co. v. Hayes, 202 Ala. 450, 80 So. 834; Standard Co. v. McMahon, 203 Ala. 158, 82 So. 188; Paterson v. Bank, 203 Ala. 536, 84 So. 721, 10 A. L. R. 1037; Oden-Elliott Co. v. Gaddis L. Co., 210 Ala. 582, 98 So. 730; Langham v. Jackson, Supt., 211 Ala. 416, 100 So. 757; Campbell Co. v. Brewer, 212 Ala. 50, 101 So. 748; Liverpool Co. v. McCree, 213 Ala. 534, 105 So. 901; L. & N. R. R. Co. v. Bashinsky, 214 Ala. 169, 106 So. 804; Reynolds v. Collins, 78 Ala. 97; Gimon v. Terrell, 38 Ala. 208; Bradford v. Barclay, 39 Ala. 33.

The testimony of Mr. Adler presented for the jury the questions of fact of agency and extent of authority of Mr. Stillman as to said premises and tenancy of the plaintiff and her husband. The request for the repairs, made within the old term, to Stillman, the agent; the threat to remove if not made; the promise to make the repairs in...

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