Griffin v. Freeborn

• Decision Date: 18 May 1914
• Docket Number: No. 10998.,10998.
• Citation: 181 Mo. App. 203,168 S.W. 219
• Parties: GRIFFIN v. FREEBORN.
• Court: Missouri Court of Appeals

168 S.W. 219

181 Mo. A. 203

GRIFFIN v. FREEBORN.

No. 10998.

Kansas City Court of Appeals. Missouri.

May 18, 1914.

Rehearing Denied June 13, 1914.

1. LANDLORD AND TENANT (§ 125) — LIABILITY OF TENANT.

A tenant takes the premises as he finds them; there being no warranty implied in law on the part of the landlord that they are tenantable or even reasonably suitable for occupation.

2. LANDLORD AND TENANT (§ 164) — INJURIES TO TENANT — LIABILITY OF LANDLORD.

Where there are hidden defects in the demised premises not discoverable by reasonable inspection, the landlord is liable for injuries to his tenant by reason of such defects.

3. LANDLORD AND TENANT (§ 172) — CONSTRUCTIVE EVICTION.

While a tenant may be evicted by the conduct of the landlord in creating or permitting the existence of a nuisance in or about the demised premises, yet the landlord must in some way be responsible for the nuisance for it to constitute a constructive eviction.

4. LANDLORD AND TENANT (§ 171) — EVICTION — NUISANCE.

For a tenant to be evicted by the existence of a nuisance about the demised premises, the nuisance must be of a serious character, so intolerable as to involve a deprivation of the use of the leasehold.

5. LANDLORD AND TENANT (§ 171) — CONSTRUCTIVE EVICTION — VERMIN.

Where demised premises became so infested by water bugs that they could not be used as a residence, the tenant was not justified in abandoning the property, where the lease declared that the house was rented in its present condition and the presence of vermin was not caused by any act of the lessor.

6. LANDLORD AND TENANT (§ 178) — EVICTION — ABANDONMENT OF PREMISES.

Where a tenant is constructively evicted because of some defect in the demised premises, he must abandon them within a reasonable time, and his retention of the premises for over a year deprives him of the right to abandon.

7. LANDLORD AND TENANT (§§ 150, 172) — DUTIES OF LANDLORD — REPAIRS.

In the absence of an express agreement, the lessor is under no obligation to repair the demised property, whether the need for repairs existed at the time of the leasing or arose afterward; hence the sagging of furnace pipes in a house demised as a residence which rendered it impossible to heat the same will not justify the lessee in abandoning it.

Appeal from Circuit Court, Jackson County; F. G. Johnson, Judge.

Action by Therese L. Griffin against Faun W. Freeborn. From a judgment for plaintiff, defendant appeals. Affirmed.

Pew & Proctor, of Kansas City, for appellant. House, Manard, Allen & Johnson, of Kansas City, for respondent.

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, § 86, p. 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, loc. cit. 622, 109 S. W. 1044. 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, loc. cit. 503, 74 S. W. 886. 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...