Blake v. Dick

Decision Date28 January 1895
Citation38 P. 1072,15 Mont. 236
PartiesBLAKE v. DICK.
CourtMontana Supreme Court

Appeal from district court, Lewis and Clarke county; Horace R. Buck Judge.

Action by James Blake against Dell Dick. From a judgment for plaintiff, and an order denying his motion for a new trial defendant appeals. Affirmed.

Blake sued Dick for $120, rent due by Dick for certain premises plaintiff, and an order denying his motion for a new trial defendant appeals. Affirmed.

Kinsley & Blackford, for appellant.

Massena Bullard, for respondent.

HUNT J. (after stating the facts).

The lease between Blake and Dick was the ordinary contract between landlord and tenant. There was therefore no implied warranty on the part of Blake that the dwelling house leased was in tenantable condition, or would be kept in such condition; nor at the time of the original contract between the parties was there any obligation on Blake's part to make any repairs of the cellar or ground. These rules of law are too well settled to require a citation of authorities to support them. Bowe v. Hunking, 135 Mass. 383, and cases cited. Defendant, in his answer, having admitted the execution of the lease and nonpayment of rent, assumed the burden of proof to escape liability under its terms. He was asked "if there was any change in the condition of the basement about that time [meaning July, 1891] from what he found it." This question was objected to, and the objection sustained. Whereupon defendant made the following offer of proof: "I now offer to show that these premises were so situated that any rain or storm was liable to flood this basement, and render it unfit for use; that at the time this defendant leased this building it was warm, dry weather, and that defect was not apparent to him at the time; that tenants who had occupied the building before this defendant occupied it complained, and were obliged to leave on account of a similar defect; that by the rain of about July 4th this cellar was filled with filth, manure, mud, and water, which ran into it from a stable yard belonging to the plaintiff on the premises immediately adjoining; that the basement was filled with water to the depth of some six or eight feet, and also with the filth from the barnyard; that it remained so for some week or ten days; that the plaintiff or his agent came there and offered to remove it, admitted that they were liable to remove it, and undertook to remove it; that they took it from the basement, and spread it around in the yard of the premises, and left it in manure piles, and piles of rubbish and garbage, and that these piles of rubbish and garbage so distributed upon the premises rendered the whole premises unfit for occupation; and that by reason of this change in the premises, making it dangerous to the health and lives of the family of the defendant, he was obliged to and did surrender the premises to the plaintiff." Plaintiff objected to the offer upon the ground that such proof was irrelevant and immaterial, and, if established, would constitute no defense to the complaint. The court sustained this objection.

The defendant contends that because the facts in relation to the situation of the premises, and the construction of the dwelling house, and the liability of the water to run down into the cellar, were not apparent to him at the time he leased the property, it became the duty of the landlord to disclose all such "defects" to him, and that, not having done so, he was guilty of fraud in procuring the lease. But the tenant cannot complain. The landlord did not warrant the condition of the premises. The tenant, by the evidence, inspected them. He took the risk of their condition. Tayl. Landl. & Ten. § 328. We find no plea of concealment by the landlord of any fact of which the tenant did not have full opportunity of informing himself, and accepting, as we do, all the facts to be true, as pleaded and offered, in relation to the occasional rains, causing draining of water into the cellar from the stable yard of the landlord, there can be no deduction that, by reason of such overflow or drainage, there was any suppression of the truth or any concealment of facts, or other conduct positively or inferentially fraudulent on the part of the plaintiff, before or at the time of the execution of the lease. Milliken v. Thorndyke, 103 Mass. 385, relied on by appellant, was decided upon a wholly different state of facts from that in this case. There the lessees set up that before the execution of the lease they had a conversation with the lessor, and that by the false representations of the lessor of material facts which he knew to...

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