Ewing v. Cadwell

• Decision Date: 22 September 1925
• Docket Number: Case Number: 15646
• Citation: 1925 OK 751,121 Okla. 115,247 P. 665
• Parties: EWING et al. v. CADWELL et al.
• Court: Oklahoma Supreme Court

1925 OK 751

247 P. 665

121 Okla. 115

EWING et al. v. CADWELL et al.

Case Number: 15646

Supreme Court of Oklahoma

Decided: September 22, 1925

Syllabus

¶0 1. Landlord and Tenant--Rights of Tenant Where Landlord Fails to Make Needed Repairs--Damages not Recoverable.

Under sections 7370 and 7371, Comp. Stats. 1921, providing that the lessor of a building intended for the occupation of human beings, must put same in condition fit for such occupation, and repair all subsequent dilapidations, and that within a reasonable time after notice to the lessor of dilapidations which he ought to repair and he neglects to do so, the lessee may repair the same himself and deduct the expense of such repair from the rent or otherwise recover it from the lessor, or the lessee may vacate the premises, in which case he shall be discharged from further payment of rent or performance of other conditions, and where the landlord fails to repair after notice, the tenant may himself repair and charge the expense thereof to the landlord, or he may move out and be relieved from further obligation under his lease, but he has no redress in damages for injury to his property caused by the landlord's failure to repair.

2. Same--Statutes Controlling.

For failure of the lessor of a building intended for the occupancy of human beings to comply with section 7370, Comp. Stats. 1921, providing that it be placed in fit condition and further providing for subsequent repairs, the lessee is confined to the remedy provided in section 7371, Comp. Stats. 1921, and the noncompliance on the part of the landlord gives the tenant no right of action for damages to his property resulting from a failure of the landlord to make such repairs.

Error from Court of Common Pleas, Tulsa County; Font L. Allen, Judge.

Action by L. N. Ewing and E. G. Hastings against E. F. Cadwell and Mrs. E. F. Cadwell. Judgment for defendants, and plaintiffs bring error. Reversed.

C. A. Steele, W. A. Daugherty, and E. D. Brewer, for Plaintiffs in error.

Moss & Owen, for defendants in error.

PHELPS, J.

¶1 This cause comes here on appeal from the common pleas court of Tulsa county, Okla., and arose when plaintiffs in error, L. N. Ewing and E. G. Hastings, who were plaintiffs below, filed their action alleging that they were the owners of certain residence property in the city of Tulsa which they had rented to the defendants, E. F. Cadwell and Mrs. E. F. Cadwell, and that defendants were indebted to them in the sum of $ 100 as one month's rental on said property.

¶2 Defendants filed their answer, alleging that they had rented the property from plaintiffs under a parol agreement, and after they had moved into said property they discovered that the plumbing was defective; that gas was leaking from the pipes and fixtures; that the roof leaked, and that the surface water drained into the basement, all of which caused damage to the personal property of the defendants in a sum exceeding $ 100. The cause was tried to a jury, who returned a verdict for the defendants, and from judgment rendered thereon plaintiffs appeal.

¶3 Defendants claim that they are relieved from the payment of rentals by virtue of sections 7370 and 7371, Comp. Stats. 1921, which reads as follows:

"The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof except that the lessee must repair all deteriorations or injuries thereto occasioned by his ordinary negligence.

"If, within a reasonable time after notice to the lessor of dilapidations which he ought to repair, he neglects to do so, the lessee may repair the same himself, and deduct the expense of such repairs from the rent, or otherwise recover it from the lessor; or the lessee may vacate the premises, in which case he shall be discharged from further payment of rent, or performance of other conditions."

¶4 The record discloses that defendants notified plaintiffs of the condition of the premises and requested them to make repairs, which plaintiffs refused to do, but served notice on the defendants to vacate the premises. The record shows, beyond question, that the roof of the house in question was defective, allowing the rainwater to leak through into the house, and also that the basement filled with water, but plaintiffs contend that under the statutes above quoted they are not liable to defendants for damages caused thereby, insisting that defendants' remedy is fixed entirely by the sections of the statutes above quoted. In our judgment, this contention is well founded.

¶5 Section 7370 makes it the duty of the landlord to put the property into a condition fit for human occupation and to repair all subsequent dilapidations thereof, not occasioned by the tenant's ordinary negligence, and section 7371 provides a specific remedy for the tenant if this is not done, to wit: After giving the landlord notice the tenant may make the repairs and pay for the same out of the rentals going to the landlord, or he may vacate the property and be discharged from further liability on his rental contract. It will be observed that the duty of the landlord and the remedy provided for the benefit of the tenant are strictly statutory.

¶6 Apparently this court has not had under consideration the question here presented in any reported case and we must, therefore, look to other jurisdictions for the authorities construing this statute. 25 R. C. L., page 1058, lays down the rule that:

"Where a statute creates a right and prescribes a remedy for its violation, the remedy thus prescribed is exclusive."

¶7 36 Cyc. 1175, lays down the rule that:

"Where a statute imposes a new duty upon any person without providing any remedy or penalty for its infraction, any person for whose benefit, advantage, or protection the statute was enacted, who, without fault on his part, suffers a loss by reason of the failure to perform such duty, may maintain an action against the delinquent to recover damages. If the statute imposes a new duty and creates a new right, and at the same time provides a specific remedy to punish the neglect of the one and to secure the other, that remedy is exclusive and no other action lies for an infraction of the statute."

¶8 Under a statute similar to ours in Maria Van Every v. Flora Ogg, 59 Cal. 563, 20 P. St. Rep. 563, the landlord sued the tenant for unlawful detainer. The defendant set up a counterclaim for damages resulting from the dilapidated condition of the leased premises, alleging that they were unfit for occupation of human beings by reason of rainwater leaking through the roof; that the water leaking through the roof damaged the furniture and carpets of the defendant, and upon trial the court held that...