Hanson v. Cruse

• Decision Date: 28 June 1900
• Parties: HANSON v. CRUSE et al.
• Court: Indiana Supreme Court

155 Ind. 176

57 N.E. 904

HANSON

v.CRUSE et al.

Supreme Court of Indiana.

June 28, 1900.

Appeal from superior court, Marion county; L. M. Harvey, Judge.

Action by Susan A. Hanson against James S. Cruse and another, executors, and others. Judgment for defendants, and plaintiff appeals. Affirmed.

G. R. Estabrook and W. V. Rooker, for appellant. Kealing & Hugg, for appellees.

BAKER, C. J.

Appellant set forth in her complaint substantially these facts: On February 26, 1898, appellees owned a dwelling house in Indianapolis, which was out of repair, in that an outside door at the rear of the house was missing, some panes were broken out of windows, and certain locks were gone, so that doors could not be closed. On that day appellees proposed to appellant to repair the house in the particulars mentioned, and to rent it to her for one month from that day for nine dollars, and appellant thereupon accepted the proposition, paid the rental, and moved into the house. As soon as appellant had moved in, appellees failed and refused to make any of the repairs, except to place and hang the outside door, which was done on March 5, 1898. By reason of appellees' failure to repair the house, appellant was subjected to great exposure, and her health was permanently impaired, all without fault on her part, and to her damage $10,000. All of the appellees demurred to this complaint on the ground that it did not state facts sufficient to constitute a cause of action; some, on the further ground that the court did not have jurisdiction over them. A general order sustaining all the demurrers was made, and, on appellant's refusal to plead further, final judgment was rendered for appellees.

In this case there was no misrepresentation or concealment of the defects complained of. The defects were of the most obvious nature, and were open equally to the knowledge of both parties. There was no express warranty that the house was habitable. The relation of landlord and tenant raises neither an implied warrant of habitability nor an obligation to repair on the landlord's part. Purcell v. English, 86 Ind. 34;Lucas v. Coulter, 104 Ind. 81, 3 N. E. 622. In the absence of a contract that the landlord shall make repairs, the burden would fall on the tenant, if he wanted them made. But the tenant may contract with the landlord, as well as with another, for the making of repairs. And here such a contract was made. In the payment made by appellant was included the consideration for appellees' undertaking to repair. Under the contract, appellant was entitled to the repairs or to damages for the...