Davidson v. Fischer

• Decision Date: 16 November 1888
• Citation: 19 P. 652,11 Colo. 583
• Parties: DAVIDSON v. FISCHER.
• Court: Colorado Supreme Court

19 P. 652

11 Colo. 583

DAVIDSON v. FISCHER.

Supreme Court of Colorado

November 16, 1888

Error to superior court of Denver.

Action by Mina L. Davidson against Amelia L. Fischer to recover damages resulting from the fall of a building leased by defendant to plaintiff. On motion of defendant judgment of nonsuit was entered, and plaintiff brings error.

Browne & Putnam, for plaintiff in error.

Stallcup & Shaffroth, for defendant in error.

GERRY J.

This case was tried in the superior court of the city of Denver and a judgment of nonsuit, on motion of the defendant, was entered by the court therein, and the order made by the court below is assigned as error in this court. The complaint substantially alleges that the defendant, in the month of July, 1880, demised and let to the plaintiff for the term of six months a certain store-room and cellar in the city of Denver, for a rental of $150 a month, to be paid monthly in advance; that plaintiff at once took possession of said building, and expended large sums in fitting up the same as a saloon, and occupied said building for this purpose until the 23d day of September, 1881, at which time said building fell, and destroyed the property of plaintiff situated therein, of great value, thereby damaging her to the sum of $3,000; that the fall of said building was the direct result of the decayed and unsafe condition of its foundation and that defendant was fully apprised prior to the letting of said building that its foundation walls were in an unsafe condition, and that this fact was not in any manner communicated to plaintiff, nor did she have any knowledge of the same, prior to the fall of said building, and the damage complained of. The answer specifically denied each material allegation of the complaint, and the cause came on for trial before a jury upon the issues thus joined. The evidence conclusively proved the letting to the plaintiff of the premises described; the expenditures by her made for fixtures, ornaments, and furniture; her entry into the possession of the premises; the uses to which it was applied its fall at the time named in the complaint; and the damage proximately resulting to the property of the plaintiff from the fall of said building. Several witnesses on the trial testified as to the condition of the walls of the said building, both before and after its fall; and two witnesses, George W. Brown and Fred Ohlman, testified that they had examined the foundation walls of said building at the instance of the defendant herein, and each reported to her that the same were unsound and unsafe before the letting in this case. The evidence shows beyond controversy that the plaintiff was not informed by the defendant, or any one in her behalf, of the unsafe and unsound condition of said building, prior to the time of her entry therein; that the plaintiff, after entering into possession of the demised premises, had full control thereof, and frequently passed into said cellar, which was too damp to be used, and also into the alley adjoining said building, where witnesses claim that defects in the wall were plainly visible, and had ample opportunities to observe and ascertain the true condition of said building. Under this evidence, and the issues herein joined, the court granted the order of nonsuit, evidently acting upon the theory that the evidence disclosed that whatever defects existed in the walls or foundation of said building at the time of letting were not latent, but, on the contrary, of such a nature that the defendant must necessarily have been apprised of their existence; and the parties dealt with each other at arms-length. In this case there was no express warranty that the building was safe, and adapted to the uses to which the plaintiff designed to apply the same, and no actual fraud or misrepresentation. Therefore, if any liability exists, it does not arise from any contract entered into between the parties, but arises by operation...