Folley v. United Bldg. & Loan Ass'n of Hackensack

• Decision Date: 31 July 1936
• Docket Number: Nos. 428, 429.,s. 428, 429.
• Citation: 186 A. 591
• Parties: FOLLEY v. UNITED BUILDING & LOAN Ass'n OF HACKENSACK (two cases).
• Court: New Jersey Supreme Court

186 A. 591

FOLLEY

v. UNITED BUILDING & LOAN Ass'n OF HACKENSACK (two cases).

Nos. 428, 429.

Supreme Court of New Jersey.

July 31, 1936.

Appeals from District Court, Bergen County, Third District.

Actions by Sadie J. Folley and by George Folley against the United Building & Loan Association of Hackensack. From judgments in favor of the plaintiffs, the defendant appeals.

Reversed and remanded.

Argued January term, 1936; before HEHER and PERSKIE, JJ.

Cox & Walburg, of Newark (William H. D. Cox, of Newark, of counsel), for appellant.

Major, Back & Carlsen, of Hackensack (James A. Major, of Hackensack, of counsel), for respondents.

HEHER, Justice.

Plaintiff Sadie J. Folley seeks recovery of damages for injuries claimed to have been tortiously inflicted. Her husband, George, sued per quod. The gravamen of the actions is the asserted breach by the defendant landlord of a duty to use "due and proper care to keep and maintain the stairways of" a dwelling leased to Sadie, by indenture executed by her on or about January 22, 1934, "in a safe and proper condition." Sadie lost her footing and fell, when the heel of her shoe sank into the linoleum on the landing of the cellar stairway, unsupported because of a rotten strip of wood underneath.

The district court judge, sitting without a jury, found for the plaintiffs; and from the consequent judgments, defendant appeals.

The term of the lease was fourteen and one-half months, to commence on February 15. However, the lessee entered into possession on February 12, and on that day suffered the mishap made the basis of these actions; and this court, in reversing a prior judgment in favor of plaintiffs, held that, on the proofs there made, the plaintiff lessee "went into the premises * * * three days before the term of the lease began, apparently without any authority and, so far as the record discloses, without any knowledge on the part of the defendant," and that there could not be drawn from the evidence "an invitation to the Foileys to enter the premises before the time fixed in the lease or to deduce a legal obligation upon the defendant to have the repairs made before the beginning of the lease term." 178 A. 95, 96, 13 N.J. Misc. 293.

The lease did not impose upon the landlord the obligation to make repairs. Plaintiffs rely upon an asserted oral undertaking by the landlord's president, on behalf of his principal, before the making of the lease, to "finish them (the premises) up and put them in first-class order downstairs, and clean them * * *; clean and repair all downstairs."

Upon the retrial, there was introduced, apparently without controversion, evidence that in the latter part of January, several days after she had executed the lease and paid a portion of the first month's rent, the lessee, to obviate the necessity of providing "coal for the two houses," sought and procured the landlord's permission to enter into possession of the leased premises before the beginning of the stipulated term. There was this conversation, so she testified, relative to the then condition of the premises: "Q. What did Colonel Holley (the landlord's president) say with respect to the condition of the premises at that time? A. At that time he said the house was all completed and I could go in at any time and he would have the man in there, the keeper, to move out and let me in." On cross-examination, she testified that "he (Holley) said to me that everything was all right, it was in first-class order, and I could go into the house."

The decisive question is whether there was evidence tending to show that the injuries thus compensated were the proximate result of a breach of a duty resting upon the landlord; and we resolve it in the negative.

First. The general rule is that, upon the letting of a house or lands, there, is no contract or condition implied that the premises are or shall be fit and suitable for the use for which the lessee requires them; and therefore the landlord is not liable for injuries sustained by a tenant, or his family, or guests, by reason of the ruinous condition of the premises demised. Siggins v. McGill, 72 N.J.Law, 263, 62 A. 411, 3 L.R.A.(N.S.) 316, 111 Am.St.Rep. 666; Bolitho v. Mintz, 106 N.J.Law, 449, 148 A. 737; Reilly v. Feldman, 103 N.J. Law, 517, 138 A. 307; Clyne v. Helmes, 61 N.J.Law, 358, 39 A. 767; Naumberg v. Young, 44 N.J.Law, 331, 43 Am.Rep. 380. Assuming that, in the circumstances, evidence of the claimed parol agreement to repair and put the downstairs premises in "first class order" was admissible, the performance of that obligation related to the first day of the term; and the undertaking was not breached by a failure of performance before that day.

Second. Exceptions to the rule above stated are that where the landlord assumes a binding contractual obligation to repair ...