Burnes v. Fuchs

• Decision Date: 20 December 1887
• Parties: D. D. BURNES et al., Respondents, v. A. H. FUCHS, Appellant.
• Court: Missouri Court of Appeals

28 Mo.App. 279

D. D. BURNES et al., Respondents, v. A. H. FUCHS, Appellant.

Court of Appeals of Missouri, St. Louis.

December 20, 1887

APPEAL from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Affirmed.

DYER LEE & ELLIS, for the appellant: (1) The answer, if true sets up a good defence to the plaintiff's action. (2) The lease of certain rooms on floors in the building did not impose upon the appellant the duty of keeping in repair the entire premises, and if that portion not leased by him became so dilapidated, through neglect of the landlord, as to render it unsafe for the appellant to remain, then he was justified in quitting the premises, and no claim can be legally made of him for rent during the remainder of the term. (3) There was an implied agreement on the part of the respondents at the time of the lease to appellant that the premises should be kept in such repair as not to disturb the possession of appellant in the rooms leased to him. (4) The condemnation of the walls of the building by the city inspector was in law an ouster of appellant from his possession, and respondents cannot recover rent after such ouster. Ward v Fagin, 28 Mo.App. 116.

FISHER & ROWELL, for the respondents: It is the settled law of this state that a tenant cannot defeat the collection of rent on the ground that the premises have become untenantable, in the absence of a covenant to repair. Davis v. Smith, 15 Mo. 467; Gibson v. Perry, 29 Mo. 245; Peterson v. Smart, 70 Mo. 34; Wehrman v. Priest, 12 Mo.App. 577; Deutsch v. Abeles, 15 Mo.App. 398; Rogan v. Dockery, 23 Mo.App. 313.

OPINION

THOMPSON J.

When this case was called for trial the court, on an inspection of the pleadings, directed a verdict for the plaintiff; and the only question for decision is, whether the answer sets up a defence to the action which is good in law. Briefly stated, the case exhibited by the pleadings is, that the plaintiffs leased to the defendant the first floor, and on the following day, the second and third floors of a three-story brick building in the city of St. Louis; that the defendant took possession and paid rent for a time, when, without fault on the part of defendant, the premises became in such a dilapidated and dangerous condition that he could not with safety further continue to occupy them; that he thereupon vacated them and refused to pay any further rent under the lease. It is incidentally stated that the dangerous condition of the premises became known to the authorities of the city; that an inspection was ordered by them, and that, in pursuance of an ordinance of the city, the plaintiffs were required to tear down the rear wall of the house and to rebuild the same. The present action is brought to recover the rent which accrued from the time when the defendant vacated the premises to the end of the term.

It is plain that the court properly directed judgment for the plaintiffs. The answer set up no defence, the damages were liquidated by the contract between the parties, and there was nothing for a jury to try. In the absence of an express warranty in a lease, that the demised premises are in good repair or fit for...