Donaldson v. Wilson

• Decision Date: 10 February 1886
• Citation: 60 Mich. 86,26 N.W. 842
• Court: Michigan Supreme Court
• Parties: DONALDSON v. WILSON.

26 N.W. 842

60 Mich. 86

DONALDSON v. WILSON.

Supreme Court of Michigan

February 10, 1886

Error to Muskegon.

C.C Chamberlain, for plaintiff and appellant.

Smith, Nims, Hoyt & Erwin, for defendant.

CHAMPLIN, J.

Plaintiff brought an action on the case to recover the value of certain personal property destroyed in consequence of the falling of a building owned by Samuel W. Odell, the defendant's testator. Judgment was rendered for Odell, who subsequently died, and the suit was revived in the name of the defendant as his executor. From the evidence produced on the trial by the plaintiff it "appears that for some time prior to the twentieth day of March, 1882, Brown & Friend were the owners of lot fifteen (15) of subdivision of block seven (7) of the city of Muskegon, on which was a two-story brick building, the foundations of which were in a defective condition, and that by reason of such defects the building fell to the ground in December following. On the twentieth day of March, 1882, Brown & Friend made a written lease of said lot and building to Charles R. Walters and Richard Sonenburg for the term of one year from and after April 1 1882. In the lease Walters & Sonenburg agreed to pay for all repairs made during its life, not to assign nor transfer the lease, or to sublet the premises, or any part thereof without the written assent of the lessors; to keep the premises, and every part thereof, during the continuance of the lease in as good repair, and to yield them at the expiration of the term to the lessors in like condition, as when taken, reasonable use and wear and damage by the elements excepted. Walters & Sonenburg at once took possession, using the ground floor for a saloon and the second story as a residence, Sonenburg subsequently selling out to Walters, who continued in possession, running the saloon until the building fell. In May, 1882, Brown & Friend sold the premises to S.W Odell, subject to the lease to Walters & Sonenburg, and assigned the lease to him. In September, 1882, the plaintiff, without Odell's knowledge or assent, rented from Walters rooms in the second story of the building, which she occupied as a residence until December 28, 1882, when the building fell and her property was damaged. The plaintiff knew nothing of the defective condition of the building, nor did she know who owned it. In March or April, 1882, Brown & Friend had the building examined, but the testimony does not show that Odell had any knowledge of its condition. The ground of action alleged in plaintiff's declaration rests on a breach of duty to repair the building, which was imposed on Odell by reason of his ownership. In order to sustain her action it was incumbent on the plaintiff to show that Odell owed her a clear legal duty to keep the premises in repair."

The plaintiff claims that it was the duty of Odell to have taken such care of the foundation walls of his building that they should not, from natural and a very ostensible decay precipitate the building upon the...