Gregor v. Cady

• Decision Date: 19 November 1889
• Citation: 82 Me. 131,19 A. 108
• Parties: GREGOR v. CADY.
• Court: Maine Supreme Court

19 A. 108

82 Me. 131

GREGOR

v. CADY.

Supreme Judicial Court of Maine.

Nov. 19, 1889.

(Official.)

Report from supreme judicial court, Cumberland county.

Action by Maria Gregor against Hannah E. Cady, to recover for personal injuries received by reason of the defective condition of certain premises leased by said plaintiff of said defendant.

George Libby, for plaintiff. W. H. Looney, for defendant.

VIRGIN, J. In August, 1887, the defendant leased in writing to the plaintiff a second story tenement, including a shed and privy attached, to which access was had by a bridge from the kitchen. Subsequently, but prior to March, 1888, the attention of the lessor was called to the rickety condition of some portion of the premises, especially the bridge; and he, with a carpenter, made repairs of the bridge. On March 14, 1888, while the plaintiff was in the privy, the floor gave way; whereupon she, in falling, seized hold of the door-stool to prevent herself from going down several feet into the vault, and was severely injured, for which the jury returned a verdict for $825. The defendant, without finding any fault with the amount of the verdict, seeks to have it set aside, as being against law and evidence.

It is common knowledge among the members of the profession that no duty on the part of a landlord to repair leased premises arises out of the relation subsisting between him and his tenant, and, in the absence of any covenant on his part in the lease that the premises are in proper repair, he is under no legal obligation to make repairs; but the tenant, on the principle of caveat emptor, and in the absence of any fraud on the part of the landlord, takes them in the actual condition in which he finds them, for better or for worse.

Moreover, any subsequent promise by the landlord to repair is without consideration, and no action of assumpsit will lie for his non-performance of such a promise. Libbey v. Tolford, 48 Me. 316.

But while it is generally true, with respect to gratuitous contracts, that for non-feasance no action lies, still for misfeasance an action on the case may be maintained, inasmuch as "the confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it." Smith's note in Coggs v. Bernard, Smith, Lead. Cas. (6th Amer. Ed.) 355. "A distinction exists between non-feasance and misfeasance,—between a total omission to do an act which one gratuitously promises to do, and a culpable negligence in the...