Leech v. Husbands

• Decision Date: 11 November 1930
• Citation: 34 Del. 362,152 A. 729
• Court: Delaware Superior Court
• Parties: EMILY D. LEECH, d. b. a., v. EVELYN HUSBANDS, p. b. r

152 A. 729

34 Del. 362

EMILY D. LEECH, d. b. a., v. EVELYN HUSBANDS, p. b. r

Superior Court of Delaware, New Castle County

November 11, 1930

Superior Court for New Castle County, No. 156, November Term 1929.

Action of debt for rent.

The defendant filed two pleas, both of which admitted the execution of a lease dated December 11, 1928, for "the term of one or more years" from December 15, 1928, for apartment No. 1 on the first floor of the house known as the "Larchmont" on Jefferson Street, in the City of Wilmington, and that she moved into said apartment and retained possession of it, paying her rent in advance, until about June 1, 1929, when she moved out of it and refused to pay the stipulated rent for the remainder of the term.

As a reason for moving out of the plaintiff's apartment and refusing to pay the subsequent rent provided for by the lease, she alleged:

1. That at the time of the execution of the lease in question "the plaintiff below respondent knew that the above-mentioned premises * * * were infested with vermin bugs and disease germs so as to endanger the health of the occupants of the said apartment and to render said apartment unfit for habitation, but did not tell the said defendant below appellant of the said condition of the premises. That the said infestion of the apartment with vermin, bugs and disease germs was not known to the said defendant below appellant at the time of entering into the lease and was not apparent or easily discoverable on the inspection of the apartment. That shortly after the said defendant below appellant occupied the said premises she notified the said plaintiff below respondent of the condition of the premises and was told by the said plaintiff below respondent that she * * * would remedy and exterminate the said vermin, bugs and disease germs. That the said defendant below appellant occupied the said apartment for a period of six months or thereabouts and the said plaintiff below respondent did nothing to relieve the situation and the premises became so uninhabitable and so dangerous to the health of the said defendant below appellant that she was forced to vacate the premises."

2. That after the said defendant below appellant entered into possession of the said premises, she notified the said plaintiff below respondent, that the said premises were infested with vermin, bugs and disease germs, and the said plaintiff below respondent promised to exterminate them and make the premises habitable. That the said defendant below appellant thereafter repeatedly notified the said plaintiff below respondent of the said above-mentioned condition of the premises, and she never exterminated the said vermin, bugs or disease germs, or tried to do so. That on account of the failure of the said plaintiff below respondent to exterminate the said vermin, bugs and disease germs, the apartment became so uninhabitable and dangerous to the health of the said defendant below appellant that she was forced to deliver up the said premises and leave the apartment.

The demurrer is sustained as to both pleas.

J. Paul Green for plaintiff below, respondent.

John J DeLuca for defendant below, appellant.

RICE and HARRINGTON, J. J., sitting.

OPINION

HARRINGTON, J.

This is an action of debt for rent and whatever the rule may be in a short term lease of a furnished house or apartment where immediate occupancy is intended, the rule of caveat emptor ordinarily applies between landlord and tenant and there is no implied covenant, or even a warranty, in a lease of an unfurnished house or apartment that it is either reasonably fit or safe for habitation, or that it will remain in that condition. Cowen v. Sunderland, 145 Mass. 363, 14 N.E. 117, 1 Am. St. Rep. 469; Griffin v. Freeborn, 181 Mo. App. 203, 168 S.W. 219; Daly v. Wise, 132 N.Y. 306, 30 N.E. 837, 16 L. R. A. 236; Bowe v. Hunking, 135 Mass. 380, 46 Am. Rep. 471; Fisher v. Lighthall, 4 Mackey (D. C.) 82, 54 Am. Rep. 258; Murray v. Albertson, 50 N.J.L. 167, 13 A. 394, 7 Am. St. Rep. 787; Tiffany on L. & T., vol. 1, page 556; 36 C. J. 43, 47; 4 A. L. R. 1453.

It, therefore, necessarily follows that in the absence of fraud, there is no implied covenant or representation of any character that a house or apartment is free from vermin, bugs, or disease germs, and that such conditions should usually be guarded against by express covenants. Hart v. Windsor, 12 Mees. & W. 68; Naumberg v. Young, 44 N.J.L. 331, 43 Am. Rep. 380; Cutter v. Hamlen, 147 Mass. 471, 18 N.E. 397, 1 L. R. A. 429; 36 C. J. 47, citing Brown v. Delmos, 27 B. C. 471.

The defendant concedes that there is no express covenant as to the habitable condition of the demised premises in this lease, but contends that she is excused from the payment of rent after she left the apartment:

1. Because the execution of the lease was procured by fraud on the part of the plaintiff and by reason of that fact she subsequently rescinded the contract.

2. Because the failure of the plaintiff to remedy conditions existing in the apartment, making it uninhabitable and dangerous to health, amounted to a constructive eviction therefrom.

She also contends that these defences have been properly pleaded and the demurrer raises that question.

The fraud relied on in the first plea is a concealment of the fact that the premises at the time of the execution of the lease "were infested with vermin, bugs and disease germs so as to render the health of the occupants * * * and to render said apartment unfit for habitation"; such conditions, though known to the plaintiff, being unknown to the defendant and not being "apparent or easily discoverable on the inspection of the apartment."

The failure to disclose known material facts may, undoubtedly, constitute fraud in some cases (13 C. J. 384; 35 C. J. 1161; 4 A. L. R. 1460, 1469; Steele v. Kinkle, 3 Ala. 352; Fleming v. Slocum, 18 Johns. (N.Y.) 403, 9 Am. Dec. 224; Crawford, et al., v. Bertholf, 1 N.J. Eq. 458; Wilde v. Gibson, 9 Eng. Repr. 897), but there must not only be a duty to speak in the particular case (27 C. J. 31; 4 A. L. R. 1461, 1469; Jordan & Sons v. Pickett, 78 Ala. 331), but like misrepresentations the concealment must, also, be with the intent to deceive the other party and to induce him to act to his detriment. Jordan & Sons v. Pickett, 78 Ala. 331; Wilde v. Gibson, 9 Eng. Repr. 897; 26 C. J. 1123; 27 C. J. 34.

Generally speaking, neither party to a contract of any kind is bound to disclose facts known to him which might prevent the other party from entering into such contract, and where no confidential relation exists between them actual misrepresentations are, therefore, usually necessary to constitute fraud. Pickering v. Day, 3 Houst. 474, 95 Am. Dec. 291; 13 C. J. 383.

There are, however, exceptions to this rule; and among other exceptions there is an obligation imposed by law that no person, with knowledge of the conditions and the probable result, has the right to induce another person to put himself into a position of danger where such danger was neither known to nor readily apparent to such other person. Tiffany on Landlord & Tenant, vol. 1, 562, etc.; 4 A. L. R. 1460, etc.; 13 C. J. 384.

While the cases are not wholly in accord as to the ground on which the remedy is based, generally speaking, at least, a failure to observe this rule would seem to constitute negligence and when it results in injury the guilty party may, therefore, be sued in an action on the case. This principle is applied in the sales of dangerous or noxious articles, the properties of which are known to the seller but not to the buyer and which are not readily discoverable by him ( Cowen v. Sunderland, 145 Mass. 363, 14 N.E. 117, 1 Am. St. Rep. 469; French v. Vining, 102 Mass. 132, 3 Am. Rep. 440; Carter v. Towne, 98 Mass. 567, 96 Am. Dec. 682; Stevens v. Pierce, 151 Mass. 207, 23 N.E. 1006; Huset v. J. I. Case, etc., Co. (C. C. A.), 120 F. 865; Tiffany on Landlord & Tenant, vol. 1, page 562, etc.; 24 R. C. L. 507. See, also, Clark v. Army, etc., Society, [1903] 1 K.B. 155); and to cases where a person knowing the facts but not disclosing them expressly or impliedly invites another person to go on his premises, though dangerous spring guns or traps are concealed there. Cowen v. Sunderland, 145 Mass. 363, 14 N.E. 117, 1 Am. St. Rep. 469; Minor v. Sharon, 112 Mass. 477, 17 Am. Rep. 122; Tiffany on L. & T., vol. 1, page 564.

It is, also, applied to cases where a landlord, knowing the conditions, but without telling the tenant, leases premises which he knows are infected with smallpox or some other concealed or dangerous disease germ. Cutter v. Hamlen, 147 Mass. 471, 18 N.E. 397, 1 L. R. A. 429; Minor v. Sharon, 112 Mass. 477, 17 Am. Rep. 122; Cesar v. Karutz, 60 N.Y. 229, 19 Am. Rep. 164. See, also, Bowe v. Hunking, 135 Mass. 380, 46 Am. Rep. 471; Stevens v. Pierce, 151 Mass. 207, 23 N.E. 1006.

If the duty to disclose known concealed danger exists and is the basis of a right of action in tort when damage results from a failure to perform that duty, there is no reason why the same duty to disclose such dangers should not exist where a contract is contemplated; and if the execution of such contract is finally induced by the intentional failure to disclose such dangers it would seem to constitute fraud. 24 R. C. L. 333; Tiffany on L. & T., vol. 1, 566.

Though considering the question from the opposite angle, Tiffany on Landlord & Tenant, supra, aptly says:

"What is fraud as regards the lessee, when considered as a person with whom the lessor is entering into contractual relations, is negligence as regards the lessee when considered as a person whom the lessor is inducing to dwell upon or otherwise utilize the dangerous premises."

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