Griffin v. Freeborn

• Decision Date: 18 May 1914
• Citation: 168 S.W. 219,181 Mo.App. 203
• Parties: THERESE L. GRIFFIN, Respondent, v. FAUN W. FREEBORN, Appellant
• Court: Kansas Court of Appeals

168 S.W. 219

181 Mo.App. 203

THERESE L. GRIFFIN, Respondent, v. FAUN W. FREEBORN, Appellant

Court of Appeals of Missouri, Kansas City

May 18, 1914

Appeal from Jackson Circuit Court.--Hon. Frank G. Johnson, Judge.

AFFIRMED.

Judgment affirmed.

Pew & Proctor for appellant.

(1) The rule is that while an eviction was originally a dispossession of the tenant by some agent of his landlord, or by failure of the latter's title, it has now come to include any wrongful act of the landlord, either of commission or omission, which may result in a substantial interference with the tenant's possession or enjoyment, in whole or in part. Delmar Investment Co. v. Blumenfield, 118 Mo.App. 308. (2) Although a lease be taken for a certain time at a certain rent, yet if the landlord wrongfully evicts the tenant, the latter will be absolved from that time on for the payment of rent. Phoenix Land & Imp. Co. v. Seidel, 135 Mo.App. 185. (3) Where the lessor by his wrongful acts defeats the enjoyment of the property by the lessee, the latter may abandon the possession and exonerate himself from the payment of rent. Jackson v. Eddy, 12 Mo. 209; Smith v. Thurston, 19 Mo.App. 48; O'Neil v Manget, 44 Mo.App. 279.

House Manard, Allen & Johnson for respondent.

(1) The fact that there were roaches in the kitchen of the demised dwelling house did not justify the lessee in abandoning the premises, or relieve him of the payment of rent therefor. Meade v. Montrose, 173 Mo.App. 722, 160 S.W. 11; Roth v. Adams, 185 Mass. 341; 1 Tiffany Landlord & Tenant, par. 86, pp. 556, 568; Jacobs v. Morand, 59 Misc. 200, 110 N.Y.S. 208; Pomeroy v. Tyler, 9 N.Y 514; Truesdell v. Booth, 4 Hun. 100; Vanderbilt v. Persse, 3 E. D. Smith, 428 (N. Y.); Hart v. Windsor, 12 Mees. & W. 68; Fisher v. Lighthall, 4 Mackey, 82, 54 Am. Rep. 258. (2) The fact that the furnace pipes in the leased premises became defective did not amount to a constructive eviction in the absence of an agreement of the lessor to repair. Graff v. Brewing Co., 130 Mo.App. 618; Roberts v. Cottey, 100 Mo.App. 500; Burnes v. Fuchs, 28 Mo.App. 279; Glenn v. Hill, 210 Mo. 291; Huggins v. Jasper, 134 Mo.App. 1. Appellant having remained in possession of the premises for more than a year after the conditions alleged to constitute a constructive eviction had arisen, waived the right to repudiate the lease therefor. Heilbrun v. Aaronson, 116 N.Y.S. 1096; Kent v. Ward, 111 N.Y.S. 743; Seaboard Realty Co. v. Fuller, 33 Misc. 109; 11 Am. & Eng. Ency. of Law (2 Ed.), 480

OPINION

TRIMBLE, J.

Suit for rent by a landlord upon a written lease of an unfurnished house for a term of two years and six months from November 1, 1910. The lease provided that "in case of abandonment or surrender of premises before termination of this lease, the obligation to pay rent shall continue." Defendant lived in the house and paid the rent up to February 1, 1912, and then moved out, and the house remained unoccupied during the months of February and March of that year. The suit is for the rent of those two months.

Defendant's claim is that he was constructively evicted. The grounds of this claim are that the kitchen was infested by water bugs or cockroaches to such an extent that they contaminated the cooking utensils and required all food to be kept in sealed jars, and that the furnace pipes sagged and became defective so that the heat was not conducted to the house but leaked out into the basement and the house could not be heated sufficiently to be comfortable.

There was no clause in the lease requiring the house to be in any particular condition. On the contrary, the lease provided "that the first party has rented to said second party in the present condition thereof the following described property, etc." Nor was there any agreement on the part of the landlord to repair. Plaintiff's offer to prove the presence of cockroaches and the defective condition of the pipes was objected to and the objection was sustained and such evidence was excluded, and at the close of all the evidence the court directed a verdict for the sum demanded, $ 200. Defendant appealed.

There being nothing in the contract stipulating that the house should be free from vermin or in a good state of repair, and there being no statute in force on the subject, the rights and liabilities of the parties are to be determined and governed by the common law which seems to regard the rights of the landlord with more concern than those of the tenant. Consequently, as said by 1 Tiffany on Landlord & Tenant, sec. 86, page 556, "It is agreed by the authorities at the present time that, as a general rule, there is no obligation on the part of the lessor to see that the premises are, at the time of the demise, in a condition of fitness for use for the purpose for which the lessee may propose to use them. A lessee, like the purchaser of a thing already in existence, is presumed to take only after examination. The maxim caveat emptor applies, and if he desires to protect himself in this regard he must exact of the lessor an express stipulation as to the condition of the premises." Further on in the same section, page 557, the author says: "Since the tenant thus takes the premises as they are, with all their imperfections, he cannot assert a right to rescind the lease, or, which is in practical effect the same thing, defend against the claim for rent, on the ground that the premises are in unsatisfactory condition or are unsuitable for his purpose." And then the author goes on to say "so it has been held that it is no defense to an action for rent . . . that a house leased (unfurnished) was so infected with bugs as to be uninhabitable, that the premises lacked a proper drain, that they were uninhabitable owing to a noxious stench, that the plumbing was defective, etc." As between landlord and tenant, the rule is well settled that, in the absence of an express agreement, a tenant takes the property in the condition in which he finds it. [Graff v. Brewing Co., 130 Mo.App. 618, l. c. 622.] In the absence of a covenant, the landlord is under no obligation to repair the premises, and, as to his tenant, the landlord is only liable for acts of misfeasance and not of nonfeasance, where there are no contractual obligations between them requiring the landlord to remedy the defect complained of. [Roberts v. Cottey, 100 Mo.App. 500, l. c. 503.] The tenant takes the premises as he finds them "for there is no warranty implied in law on the part of the landlord that they are tenantable, or even reasonably suitable for occupation, and the rule of caveat emptor applies. [Stevens v. Pierce, 151 Mass. 207, 23 N.E. 1006; Bertie v. Flagg, 161 Mass. 504, 37 N.E. 572.]" [Roth v. Adams, 185 Mass. 341, l. c. 345.]

It is true there is a rule of law that if there are hidden defects or dangers known to the landlord and unknown to the tenant and which he could not discover by reasonable inspection, the landlord, on the ground of negligence, will be liable to the tenant for any injury resulting to the lessee from such defects or dangers. And in 1 Taylor on Landlord & Tenant 223, it is said that upon the discovery of such defects, known to the lessor and not revealed, and unknown to the lessee and which a careful examination would not detect, and which may be dangerous to the occupant and render the premises untenantable it is generally held that the tenant will be justified in abandoning them. The authorities cited, however, in support of the text were Leonard v. Armstrong, 73 Mich. 577 (in which state the rule is different from that in other states), Dennison v. Grove, 52 N.J.L. 144, 19 A. 186 (in which there was not a mere failure to disclose the defect but a positive fraudulent misrepresentation of the fact by the landlord), and Daly v. Wise, 132 N.Y. 306, 30 N.E. 837, in which the court held that in a lease containing no covenant for the place to be in good condition, there is no implied covenant that it is without defects rendering it unfit for a residence, but that on account of the fraudulent misrepresentations of the landlord that the...