Green v. Long

• Decision Date: 05 November 1928
• Docket Number: 27299
• Citation: 152 Miss. 117,118 So. 705
• Court: Mississippi Supreme Court
• Parties: GREEN v. LONG. [*]

118 So. 705

152 Miss. 117

GREEN v. LONG. ^[*]

No. 27299

Supreme Court of Mississippi

November 5, 1928

Division B

1. LANDLORD AND TENANT. Generally, there is no implied covenant that lessor will make repairs, or that premises are suitable for lessee's business.

Generally in absence of express covenant in the lease, and in the absence of deceit and misrepresentation, there is no implied covenant that lessor will make repairs, or that premises are suitable for lessee's business.

2. LANDLORD AND TENANT. Lessor, voluntarily undertaking to make repairs during term, is liable for want of due care in execution of work.

Though lease does not bind lessor to make repairs to leased premises, yet, if the voluntarily undertakes to make them during the term of the lease, he is liable for want of due care in execution of work, based on principle of liability for negligence, and not because of implied covenant to repair or implied consideration.

HON. C P. LONG, Judge.

APPEAL from circuit court of Prentiss county, HON. C. P. LONG Judge.

Action by S. H. Long, guardian of Eugene Barnett, against Walter Green. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Cause reversed and remanded.

Friday & Windham, for appellant.

OPINION

PACK, J.

Appellee sued appellant for three months' rent on a certain store building which appellant was occupying under a one-year lease. Appellant did not deny the correctness of the account sued on, but denied liability thereon, and, in a special plea of recoupment, contended that his stock of goods had been damaged by a leaky roof on the building in question in a sum exceeding plaintiff's demand.

The lease contained no express covenant requiring the owner to repair the roof during the term of tenancy. During the occupancy, however, the roof became defective and leaky, and appellee voluntarily undertook to repair, or replace, the same. In doing so the work is alleged (and the proof shows) to have been highly defective, causing damage to appellant's goods by water leaking through.

At the conclusion of the evidence, the trial court granted a peremptory instruction in favor of the appellee for the amount sued for. This action of the court is assigned as error.

Was the owner liable for damage to lessee's goods proximately caused by defective or unskillful work in making the repairs? This is the question presented for decision.

The general rule is that, in the absence of express covenant in the lease and in the absence of deceit and misrepresentation, there is no implied covenant that the lessor will make repairs; nor is there an implied covenant on lessor's part that the premises are suitable for the lessee's business. Jones v. Millsaps et al., 71 Miss. 10, 14 So. 440, 23 L. R. A. 155. It is well settled, however, that, although the lease does not bind lessor to make repairs, yet if he voluntarily undertakes to make them during the term of the lease, he is liable for the want of due care in the execution of the work. This is based upon the principle of liability for negligence, and not because of any implied covenant to repair or implied consideration. This principle of law is fully stated in 16 R. C. L. 1045, as follows:

"It is the generally accepted rule that whether there is a covenant to repair or not, the lessor will be liable for injuries caused by his negligence or unskillfulness or that of his servants and employees in making repairs to the leased...