Boyer v. Commercial Bldg. Inv. Co.

• Decision Date: 02 February 1900
• Citation: 81 N.W. 720,110 Iowa 491
• Parties: BOYER v. COMMERCIAL BLDG. INV. CO. ET AL.
• Court: Iowa Supreme Court

110 Iowa 491

81 N.W. 720

BOYER

v.COMMERCIAL BLDG. INV. CO. ET AL.

Supreme Court of Iowa.

Feb. 2, 1900.

Appeal from district court, Woodbury county; J. F. Oliver, Judge.

Plaintiff leased from defendant corporation a storeroom for merchant-tailoring business in a large building for a term of three years from May 8, 1893. He went into possession, and this action is to recover damages because of the condition of the property, as hereinafter stated. It is charged that, prior to the execution of the lease, defendants had constructed and maintained furnaces, boilers, and pipes in the basement of the building, directly under the room leased to plaintiff, and that there was a large chimney between said room and the room adjoining, and that there were certain steam pipes running up through the room leased by him; that the basement was negligently constructed, in that it had no doors, windows, or openings on the east, north, or west sides, and there was therefore no means of escape for steam or hot air. Plaintiff alleges that he did not know of this condition when he made the lease, and could not, with reasonable care, have discovered it. Plaintiff further charges that defendant used said boilers, furnaces, pipes, and chimney for the purpose of running an elevator in said building and for heating the building; that the condition of the basement so heated during the summer season rendered the floor and walls of the storeroom very warm, making the atmosphere therein sultry, disagreeable, and unhealthy. Damages are asked in the difference between what plaintiff agreed to and did pay, and what the use of the room was actually worth; plaintiff having retained it during the term of the lease. After plaintiff's evidence was all in, he amended his petition, claiming that defendant affirmatively and falsely represented that the room was cool and comfortable, and all right for plaintiff's business; that plaintiff relied on these statements in taking his lease. The answer put in issue the various charges. There was a trial to jury. Verdict and judgment for plaintiff. Defendants appeal. Reversed.Strong & Owen, for appellants.

T. F. Bevington, for appellee.

WATERMAN, J.

There was a demurrer to the first petition, which was overruled. No error is assigned upon this ruling. When the case came on for trial, defendants objected to the introduction of any evidence, because no cause of action was stated in the petition. This objection was entered of record and overruled. The first assignment of error is based upon this action of the court. This sort of oral demurrer has no place in our practice, and we think the trial court was fully justified in disregarding it.

2. The general rule is that there is no implied warranty on the part of a lessor that the premises are fit for occupation, or suitable for the purpose to which the lessee intends putting them. Suth. Dam. 126; 1 Tayl. Landl. & Ten. 382.

3. There are exceptions to this rule, but we need not consider them, for this case was submitted to the jury on the theory that defendants were liable only upon proof of affirmative false representations made by them. The ninth instruction asked by defendants and given by the court is as follows: “You are instructed that, before plaintiff can recover in this action, he must establish by a preponderance of the evidence: (1) That the steam-heating plant, pumps, boilers, and furnace complained of were constructed and operated in an unskillful and negligent manner in regard to proper ventilation, and that on account of such negligent construction or operation the storeroom occupied by the plaintiff was rendered overheated and unfit for occupancy. (2) That the defendant, through his agent, Feldenheimer, misrepresented the condition of the room in question to the plaintiff; that the said Feldenheimer knew his representations to be false when he made them, and that he intended to deceive the plaintiff, and caused him to act as he did act to his injury.” It is true that in another instruction the trial court mentioned the fact of concealment as an element of the case, but the jury were fully warranted in concluding from the paragraph just quoted that a verdict for plaintiff could be founded upon affirmative acts of fraud alone. This instruction eliminates from the case every question save that of the false representations made by defendants' agent, and the injury to plaintiff. Defendants' counsel had objected to the filing of the amendment setting up these representations. They had objected to all the evidence offered to sustain them, and at the close of plaintiff's case had asked that a verdict be directed for defendants on the ground, among others, that the evidence failed to disclose any fraud on defendants' part. This motion was overruled. We do not think, under the circumstances, defendants waived their right to object to the insufficiency of the testimony to sustain the charge of fraud because they asked an instruction relating to that issue; for they had already been informed, by the court's rulings, and by the instructions given on its own motion, that notwithstanding their protest that issue was to be sent to the jury. We have then to consider the sufficiency of the testimony to sustain the charge of false representations by the agent, Feldenheimer. We may premise what we have to say on this point by stating that the evidence tends to show that the operation of the furnace rendered the room hot, uncomfortable, and to some extent unhealthy, during the plaintiff's occupancy. Prior to making the lease, plaintiff went with Feldenheimer to see the room. They went into it together. At this time the rear third of the room was partitioned off. The partition was of boards for 10 or 12 feet above the floor, and above that, to the ceiling, it was of glass. The room had been previously used as a restaurant, and some things connected with that business had been left...