Davis v. George

• Decision Date: 17 March 1893
• Citation: 67 N.H. 393,39 A. 979
• Parties: DAVIS v. GEORGE et al.
• Court: New Hampshire Supreme Court

39 A. 979

67 N.H. 393

DAVIS

v. GEORGE et al.

Supreme Court of New Hampshire. GraftOD.

March 17, 1893.

Debt, for rent of an hotel building, and for $1,137.50 for furniture and supplies. Plea, the general issue, with a brief statement, which the plaintiff moves to reject. From this statement and the admissions of the parties, the following facts appear: November 2, 1885, the plaintiff leased to the defendants the hotel, with all the furniture therein belonging to the lessor, except a few specified articles, for the term of five years from November 1, 1885, upon an annual rental of $700, payable in equal quarterly payments. The defendants covenanted that they would quit and deliver up the premises to the plaintiff at the end of the term in as good order and condition, reasonable use and wearing thereof or inevitable accident excepted, as the same are in or may be put into by the lessor; that they would not make or suffer any waste thereof, or assign or underlet the premises without the lessor's consent; that the lessor might enter to view the premises, make improvements thereon, and to expel the lessees if they failed to pay the rent. Under an agreement executed at the same time, the plaintiff turned over to the defendants the furniture in the hotel, appraised at $1,137.50, the parties stipulating therein that, "at the expiration of a lease of even date made by the parties of said house and the furniture therein, said George & Co. are to turn back to said Davis furniture and supplies of the value of said $1,137.50, at the valuation of the same appraisers or others mutually agreed upon by the parties, such articles so appraised back to be suitable for hotel purposes. * * * The lease referred to and this agreement are to be considered and construed together, as parts of one contract." There was no special stipulation in this agreement about a return of the furniture in case it was destroyed by fire. The hotel, with its contents, was wholly destroyed by fire on the 14th day of November, 1880. The defendants paid the first year's rent and $175 for the next quarter's rent in advance. In their brief statement, the defendants claim that there was an implied agreement that the hotel was inhabitable and suitable for the purposes for which it was leased, when in fact, from the date of the lease to the time of the fire, it was uninhabitable and unsuitable for those purposes, on account of defective sewerage, and on account of the defective construction of the chimneys and flues, in consequence of which the fire occurred; that, by the terms of the lease, they were excused from the performance of their covenants, because the premises were destroyed by inevitable accident; that, for the same reason, they were not obliged to perform their agreement about replacing the furniture; and that, before the rent claimed by the plaintiff became due, they surrendered to him the entire estate they had in the premises, and he accepted the same.

Bingham, Mitchell & Batchellor and Smith & Sloaue, for plaintiff.

Bingham & Bingham and Irving W. Drew, for defendants.

PER CURIAM.¹ In a lease of land there is ordinarily no implied covenant or condition that the premises are suitable for the purposes of the lessee's occupation. Elliott v. Aiken, 45 N. H. 36; Scott v. Simons, 54 N. H. 426; Dutton v. Gerrish, 9 Cush. 89; Foster v. Peyser, Id. 242; Libbey v. Tolford, 48 Me. 318; Monk v. Cooper, 2 Ld. Raym. 1477; Belfour v. Weston, 1 Term R. 310; Wilkinson v. Clauson, 29 Minn. 91, 12 N. W. 147; Doyle v. Railway Co., 147 U. S. 429, 13 Sup. Ct. 333; Edwards v. Railroad Co., 98 N. Y. 246. It is the duty of the court in such a case, as in case of other contracts, to ascertain the intention of the parties from competent evidence. When A. "leases" or "lets" his house to B. for a term of years, there is no difficulty in finding that he intends to warrant that he has the legal right or title which he assumes to convey, and that B. shall have the right to the occupancy of the house during the term. Hart v. Windsor, 12 Mees. & W. 66, 85. To find, in addition, that A. binds himself by an agreement that the premises shall be fit, convenient, or suitable for the particular occupancy which B. desires, would require further evidence than is furnished by the technical terms of the lease. If the lessee examines the property, it cannot be presumed that the parties intended he should rely upon the lessor's judgment as to the suitableness of the premises for his business or habitation. The reasonableness of the doctrine expressed by the maxim, "Caveat emptor," would preclude such an inference. His mistake in deciding that question does not raise an implied covenant on the part of the landlord that his decision was correct. Cleves v. Willoughby, 7 Hill, 83, 86; Edwards v. Railroad Co., 98 N. Y. 246; Bowe v. Hunking, 135 Mass. 380. Whatever a landlord's liability may be for fraud or deceit in regard to the condition of leased premises (Scott v. Simons, supra; Minor v. Sharon, 112 Mass. 477; Bowe v. Hunking, supra), the brief statement does not raise that question, and it is unnecessary to consider it. The defendants do not seek to charge the plaintiff for fraudulently inducing them to accept the lease. It is not claimed that the plaintiff knew that the hotel was not fit for occupation at the date of the lease, or that he was willfully ignorant of its unsuitable condition, or that the defendants did not examine the premises with reference to its adaptation to hotel purposes. The sole contention of the defendants is that, in a lease of a furnished house, there is an implied covenant or condition that it is reasonably fit for the lessee's intended occupation. If the house is unfurnished, it is admitted that such an inference would not be supported by sufficient evidence. A broad distinction in this regard is suggested between a lease of a furnished and a lease of an unfurnished house, which, on principle, is not apparent. If the landlord knows that the tenant proposes to occupy the house for a term of years as a place for the accommodation of the traveling public, why should the fact that the landlord also leases to him the furniture in the house imply an additional agreement on his part that the house is suitable for hotel purposes or for habitation? Want of repair and structural defects in the house do not depend upon the furnishings; and there is no more reason why a landlord should bind himself by a warranty against such imperfections in a lease of a furnished house than there is in a lease of an unfurnished house. To hold that such a warranty is implied in the one case, and not in the other, would introduce an arbitrary distinction, not based on any apparent practical reason, and not within the contemplation of the parties to such contracts.

A few cases, however, may seem to support to some extent the defendants' contention. In Smith v. Marrable, 11 Mees. & W. 5, the language of Parke, B., sustains the broad position that in a lease of a house, whether furnished or not, there is an implied covenant or condition that it is habitable. He cites and relies upon two cases,—Edwards v. Etherington, Ryan & M. 268, and Collins v. Barrow, 1 Moody & R. 112; but subsequently, in Hart v. Windsor, 12 Mees. & W. 66, 86, he repudiates those cases, saying, "We all concur in the opinion that they are not law;" and, since that decision, they have been treated as overruled cases. Sutton v. Temple, 12 Mees. & W. 52; Surplice v. Farnsworth, 8 Scott, N. R. 307, 316. In Smith v. Marrable, Lord Abinger said he required no authorities to hold that "a man who rents a ready-furnished house does so under the implied condition or obligation—call it what you will—that the house is in a fit state to be inhabited"; but in Sutton v. Temple, supra, he said that Smith v. Marrable was a case of a "contract of a mixed nature, for the letting of a house and furniture at Brighton, and every one knows that the furniture upon such occasions forms the greater part of the value which the party renting it gives for the house and contents. * * * Where the party has had an opportunity of personally inspecting a ready-furnished house by himself or his agent before entering on the occupation of it, perhaps the objection would not arise;...