Loscolzo v. Eggner

• Decision Date: 04 February 1908
• Citation: 23 Del. 260,78 A. 607
• Court: Delaware Superior Court
• Parties: JOSEPHINE LOSCOLZO, d. b. a., v. LEWIS EGGNER, p. b. r

78 A. 607

23 Del. 260

JOSEPHINE LOSCOLZO, d. b. a., v. LEWIS EGGNER, p. b. r

Superior Court of Delaware, New Castle County

February 4, 1908

Superior Court, New Castle County, January Term, 1908.

APPEAL (No. 89, November Term, 1907).

Verdict for defendant for $ 11.00.

Edward W. Cooch for d. b. a.

Lilburne Chandler for p. b. r.

Judges SPRUANCE and BOYCE sitting.

OPINION

SPRUANCE, J. charging the jury:

Gentlemen of the jury:--This action was brought by the plaintiff against the defendant to recover the amount of certain charges which are set down in a bill of particulars filed by the plaintiff. The limit of the plaintiff's claim is what is contained in the bill of particulars. The first item in said bill of particulars is a charge for cleaning, on April first, 1903. That charge would be barred by the statute of limitations, it being more than three years before the action was brought, which was August sixth, 1907, unless it comes within the following clause of our statute of limitations,--"If at the time when a cause of action accrues against any person, he shall be out of the State, the action may be commenced within the time herein limited therefor, after such person shall come into the State in such manner that, by reasonable diligence, he may be served with process."

Revised Code, Chap. 123, Sec. 14.

The evidence is that this defendant did reside out of the State when said cause of action accrued, but that she came into the State in the manner prescribed by the statute on the twenty-fourth of September, 1904. From that date until the time the action was brought was not three years. Therefore, the action as to this item is not barred by the statute of limitations.

The plaintiff claims that the charges in his bill of particulrs are for work and labor and money laid out in putting in repair a property belonging to the defendant, which he, the plaintiff, occupied as tenant under the defendant. The general rules of law is that a landlord is not bound to pay for repairs made by a tenant without his authority. When a man rents a property he takes it as it is, and unless the landlord has agreed to make repairs, or agrees that the repairs shall be made, or, having been made, promises to pay for them, the landlord is not bound to pay for them. It is claimed on the part of the plaintiff that the owner of these premises did agree to pay for the said repairs; that she authorized the plaintiff to make such repairs as might be necessary to put the property in proper condition. If the defendant did authorize the tenant to make the repairs, or if she directed the tenant to have them made, the law would imply a promise on her part to pay for them. But if they were made without her authority, or direction, and without her promise to pay for them, she would not be bound to pay for them; and it would be merely a voluntary expenditure of money by the plaintiff.

You may put out of your minds all question as to the ownership of this property. The plaintiff testified that for a time at least he was tenant of these premises under the defendant; and he could not therefore dispute her title.

You have heard the testimony of the plaintiff and his wife as to what passed between the plaintiff and the defendant before these repairs were commenced; which was, substantially, that the tenant should go on and make them, leaving him considerable latitude as to the character of the repairs. You have also heard the testimony of the defendant in which she denies that she ever had any such conversation as testified to by the plaintiff, and his wife, and states that she gave no direction whatever as to repairs, but referred the plaintiff to her agent when he spoke of repairs. You have heard the testimony of the agent, in which he stated that he neither ordered or authorized any repairs. You are the judges of the evidence, and under the evidence you are to determine whether or not this defendant did undertake to pay for these repairs, or--what is the same thing--whether she authorized the tenant to make them at...