Hughes v. Vanstone

• Decision Date: 08 February 1887
• Citation: 24 Mo.App. 637
• Parties: HUGHES & DILL, Respondents, v. CHARLES H. VANSTONE, Appellant.
• Court: Kansas Court of Appeals

24 Mo.App. 637

HUGHES & DILL, Respondents, v. CHARLES H. VANSTONE, Appellant.

Court of Appeals of Missouri, Kansas City.

February 8, 1887

APPEAL from Saline Circuit Court, HON. JOHN P. STROTHER, Judge.

Affirmed.

Statement of case by the court.

This was an action instituted by the plaintiffs in a justice's court, on account for twenty dollars and interest for " repairs and materials on warehouse."

The defendant appealed to the circuit court from a judgment rendered against him in the justice's court.

The plaintiffs had judgment in the circuit court and the defendant has appealed to this court.

Plaintiff Dill, rented three warehouses from the defendant for a term of two years. The lease was in writing and by its terms Dill agreed " to take good care of the property." During the term of the lease Dill & Hughes formed a partnership as grain dealers, and used the warehouses in their business. The plaintiffs thought that it was necessary to support one of the warehouses by props in order to prevent it from falling. Dill asked the defendant to have the warehouse so repaired. The defendant agreed to have the repairs made if Dill would send a man to him who could make them. Dill sent the man, but the defendant did not have the repairs made. Afterwards, the plaintiff, Hughes, furnished the material for the props and put them up as needed. The plaintiff, Dill testified that after the work was done the defendant promised to pay for it. This statement the defendant contradicted.

The defendant has presented an abstract of the record, statement and brief. The plaintiffs have presented none of them. The defendant in his abstract has set out the lease entered into between Dill and the defendant, and also the instructions but he has not, in addition to the lease, set out a single excerpt from or word of the testimony. He has simply in his own words set out the facts as he says they were or were not established by the evidence. We have hereinbefore stated facts contained in said abstract. The defendant, in addition to the facts thus stated by us, has stated in his abstract that defendant " did not request or authorize either Dill or Hughes to repair the house."

BOYD & SEBREE, for the appellant.

I. Under the written lease between plaintiff Dill and appellant, Dill was bound to " take good care of the property," and was bound to keep the same in repair. Woods' Landlord & Tenant, pp. 582-3-4, sect. 368. Rogan v. Dockery, 23 Mo.App. 313.

II. There is no pretense that Vanstone ever authorized or employed the plaintiffs to make any repairs or to do any work for him. The work being without request of Vanstone, either expressed or implied, the plaintiffs ought not to recover. Allen v. Richmond College, 41 Mo. 302.

III. The first and second instructions given at instance of plaintiff should not have been given. There were no facts on which to base either of them. There was no evidence tending to show either that defendant employed Dill to do any work, or that any account for the work was ever presented. The instructions asked by defendant and amended by the court should not have been given as amended; because, (1) The action itself was for repairs and not for other than repairs and (2), Because whether they were repairs or other than repairs plaintiff could not recover unless he was requested by defendant to do the work.

IV. The verdict and judgment should have been for defendant.

No brief for respondent.

HALL J.

Under the lease the defendant did not have to repair the warehouse. Vai v. Weld et al., 17 Mo. 233; Wood on Land. &amp Ten. sect. 368. It was the duty of Dill, the tenant, to make certain repairs--" fair and reasonable repairs." The obligation to do so would have resulted from the relation of landlord and tenant between the defendant aud Dill created by the contract. In every lease there is, unless excluded by the operation of some express covenant or agreement, an implied obligation on the part of the lessee to so use the property as not unnecessarily to injure, or, as is stated by Mr. Cowyen, " to treat the premises demised in such manner that no injury be done to the inheritance, but that the estate may revert to the lessor undeteriorated by the wilful or the negligent conduct of the lessee." Cow. Land. & Ten. 188. This implied obligation is part of the contract itself, as much so as if incorporated into it by express language. It results from the relation of landlord and tenant between the parties which the contract creates. It is not a covenant to repair generally, but to so use the property as to avoid the necessity for repairs, as far as possible. United States v. Bostwick, 94 U.S. 66; Wood on Land. & Ten. sect. 368. The express agreement on the part of Dill " to take good care of the premises" added nothing to the obligation of Dill in this respect, which would not, without such agreement, have been implied from the contract; the said agreement simply in express terms created the obligation which would otherwise have been implied, but such obligation was exactly what it would have been had it been implied and not expressly created; no more, no less. The...