Lynch v. Ortlieb

• Decision Date: 15 May 1888
• Parties: LYNCH v. ORTLIEB <I>et al.</I>
• Court: Texas Supreme Court

8 S.W. 515

LYNCH v. ORTLIEB et al.

Supreme Court of Texas.

May 15, 1888.

Commissioners' decision. Appeal from district court, Dallas county.

Action by Alex. Ortlieb & Co., the lessees of a building, against James D. Lynch, the lessor, to recover for injury to the goods and business of plaintiffs, caused by the falling of a wall of the leased building. The charge given and referred to in the fourth assignment of error is as follows: "If you believe from the evidence that, at the time plaintiffs leased the second story of defendant's building from defendant's agent, A. F. Hardie, said agent represented to plaintiffs that the walls of said building were safe and substantial; and if said representation was then untrue, the east wall of said building being then defective and unsafe; and if, after plaintiffs went into possession of said second story, they discovered that the east wall of the lower story of said building was unsafe; and that thereupon they notified defendant's said agent of its unsafe condition; and if said agent then promised to repair it, and make it safe; and if he failed to do so; and if, on account of his said failure, said east wall fell, and thereby the goods of plaintiffs were injured; and if you find further that, when said agent Hardie was notified of the unsafe condition of said wall, he promised plaintiffs to make the wall safe; and if plaintiffs relied on the promise of said agent, and were thereby induced to leave their goods in the second story over said wall; and if, by being so left in said second story, they were damaged by the fall of said wall, — then you will find for the plaintiffs, the actual damages that they have suffered by reason of the falling of said wall." Judgment for plaintiffs. Defendant appeals.

Chas. Fred Tucker, for appellant. A. L. Lathrop and H. G. Robertson, for appellee.

ACKER, J., (after stating the facts.)

Appellant, J. D. Lynch, owned a two-story business house in the city of Dallas, and on the 30th day of January, 1880, entered into a written lease for the second story of the building, to appellees, for a term of two years, beginning February 20, 1880. Appellees paid rent up to April 1, 1880, and went into possession of the leased premises, and began business as wholesale dealers in notions. The written contract of lease contains no covenant or representations as to the safety or condition of the building. On April 1, 1880, a portion of the wall of the lower story of the building fell, causing damage to appellees' goods. This action was brought against the landlord, Lynch, to recover compensation for the damage thus sustained. On the trial appellees were permitted, over objection of appellant, to testify that Hardie, agent for Lynch, who made the contract of lease with them,...