Mann v. Fuller

• Decision Date: 09 November 1901
• Docket Number: 12,181
• Citation: 66 P. 627,63 Kan. 664
• Parties: J. S. MANN v. J. C. FULLER
• Court: Kansas Supreme Court

66 P. 627

63 Kan. 664

J. S. MANN v. J. C. FULLER

No. 12,181

Supreme Court of Kansas

November 9, 1901

Decided July, 1901.

Error from Cowley district court; J. A. BURNETTE, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

LANDLORD AND TENANT--Repairs--Damages. A lessor who, in the absence of a stipulation to repair, nevertheless, at the request of the tenant, gratuitously undertakes to make repairs, but does so in such an unworkmanlike and unskilful manner that damage therefrom results to the tenant, is liable to the latter for such loss, and such damage, under the circumstances of this case, may be counter-claimed in an action to recover past-due rents.

McDermott & Johnson, for plaintiff in error.

Chas W. Roberts, for defendant in error.

OPINION

GREENE, J.:

The defendant in error commenced this action in the district court of Cowley county to recover rents due him from the plaintiff in error as his tenant. The defendant below answered, admitting generally the tenancy and his indebtedness, but. pleaded and sought to counter-claim a demand for damages which he alleged that he had sustained by reason of the building's having become untenantable during the existence of the lease, and the neglect of plaintiff below to repair the same. The special allegation was that the roof of a part of the building had become out of repair to such an extent that when it rained water leaked through and upon the stock of goods carried by the defendant; that he requested the lessor to repair the roof, and, in compliance therewith, the latter undertook to make such repairs, but made them in such an unskilful and unworkmanlike manner that the roof continued to leak, and that damage to him resulted therefrom. He prayed for judgment on his counter-claim against the plaintiff below. The plaintiff below filed a motion for judgment on the pleadings, which was sustained, and judgment rendered for the amount claimed by the plaintiff in his petition. The defendant brings the case here for review.

There is no provision in the lease that requires the lessor to make repairs, and whether he would be liable, notwithstanding the absence of such condition, is not a question in this case. The only question presented is whether a lessor, in the absence of a stipulation to make repairs, is liable for damages sustained by the lessee after the lessor, at the request of the lessee, gratuitously undertakes to make the repairs, but does so in such a careless and unworkmanlike manner as to result in injury or loss to his tenant.

The authorities uniformly hold that, if one enters upon the performance of even a gratuitous undertaking, and does it so negligently as to injure the other party, he is responsible. Mr. Kent, in speaking on this principle, says:

"A distinction exists between non-feasance and...