McHenry v. Marr

• Decision Date: 18 February 1874
• Citation: 39 Md. 510
• Parties: RAMSAY MCHENRY v. JOHN T. MARR and PHILIP T. EMMART, trading as MARR & EMMART.
• Court: Maryland Court of Appeals

39 Md. 510

RAMSAY MCHENRY v. JOHN T. MARR and PHILIP T. EMMART, trading as MARR & EMMART.

Court of Appeals of Maryland

February 18, 1874

APPEAL from the Circuit Court for Cecil County.

The facts are stated in the opinion of the Court.

The following is the defendant's third bill of exceptions.

The plaintiffs offered the following prayers:

1. If the jury find from the evidence in the cause that the relation of landlord and tenant existed between the defendant and the plaintiffs of the premises mentioned in the declaration, and which were used by the plaintiffs for the prosecution of their lawful business at the time of the happening of the injuries alleged, and that during the continuance of said relation the defendant applied to the plaintiffs for permission to make additions to and to reconstruct the partition wall between said premises and those of his adjoining neighbor, and alleged to be rendered necessary by the improvements which were to be made upon the latter, and that the said defendant promised to do said work within a reasonable time, to wit, within four or six weeks and that the plaintiffs gave such permission upon the condition that their rent should abate during the time such work was being done; and if they further find that the old wall was accordingly removed, and that the proposed new work was at once commenced by the defendant, and performed in such a negligent and unskilful manner, and the object constructed was of such insufficient dimensions, or of such imperfect workmanship, or was subjected by the defendant, or his agents, to such treatment, that if it fell down shortly after its completion and before the restoration of said premises to the plaintiffs in suitable condition for the prosecution therein of their customary business, and so injured and exposed the said building and premises as to render them unfit or inconvenient for the purposes for which they had rented it, and that defendant permitted said premises to remain in that condition for a long period, and until the end of plaintiffs' term; and if they further find, that by reason of the falling of said wall, and the injury to the said building, the plaintiffs were prevented from or impeded in the prosecution of their lawful business, and that they sustained injury and loss thereby, that then the jury must find for the plaintiffs, and may give to the plaintiffs, by their verdict, such reasonable damages as they may find plaintiffs sustained by reason of such injuries.

2. That if the jury find that the premises mentioned in the declaration had been rented by the plaintiffs from the defendant for a lawful business, to wit, a bowling and drinking saloon, and that during their lease and occupation of said premises, by reason of the improvement of the adjoining building, it became necessary to renew or reconstruct the east end of the building in question; and if the jury further find that defendant undertook and agreed with plaintiffs to renew the east wall aforesaid upon the premises, and which had been rendered necessary by improvements commenced in the adjoining building, and that the plaintiffs surrendered the use of so much of the building as was necessary for the purpose; and if they find that the said defendant, after removing the old wall, failed or neglected to rebuild a good and sufficient new wall, and that the said building was suffered thereby to remain in such an injured and exposed condition as to render it unfit or inconvenient for the prosecution of the plaintiffs' business during the residue of said lease, then the jury must find for the plaintiffs and render such damages as they may find was sustained by the plaintiffs by reason aforesaid in their business.

And the defendant offered the following prayers:

1. That if the jury find that the plaintiffs were the tenants of the defendant under the lease offered in evidence, and further find that on the 14th of April, 1870, in consequence of improvements which were in course of construction on the adjoining lot of Rennert, the said demised premises were in a condition requiring repairs, or the building or rebuilding of a wall, to put or keep them in tenantable condition, that then, under the provisions of said lease, the defendant, on the said 14th of April, 1870, prior to his alleged agreement with the plaintiffs, was under no obligation to the plaintiffs to make such repairs or build any wall, or do anything else for the repair or preservation of the property.

2. If the jury find the facts stated in the defendant's first prayer, and further find that the witness Hill, as his agent undertook to have a wall put up on the east side of the demised premises, for and on account of the defendant, and for the preservation of his property, and that his agreement with the plaintiffs was to suspend the rent until the work was completed, in consideration of the interruption it might occasion to their business, that then the plaintiffs are not entitled to recover, unless they find that the defendant was guilty of negligence; and if the jury further find that the defendant and his agents used such ordinary care in the erection of said wall as prudent men usually exercise in regard to their own property, the plaintiffs are not entitled to recover.

3. That if the jury find the facts stated in the defendant's first prayer, and that the witness Hill, as his agent, agreed with the plaintiffs to put up a wall along the east side of the demised premises, and also find that the plaintiffs knew that neither Hill nor the defendant had any skill or experience in building, nor capacity to build said wall in person, and that it was understood at the time, by and between the parties, that said wall was to be erected by sub-agents to be employed by said Hill; and further find that said Hill, acting in good faith and with honest intent to have a good and sufficient wall erected, did employ a master-builder of well established reputation and experience in such matters, with instructions to put up such wall without any limit as to cost, and that said wall was built by him as in his judgment was sufficient, that then the plaintiffs are not entitled to recover.

4. That if the jury find the facts stated in the defendant's first prayer, that then the defendant is not liable for so much of the loss and injury complained of as the jury may find was occasioned by the acts of said Rennert and would have been suffered if defendant had not undertaken to build the wall mentioned in the evidence, even although the jury should find that said wall was negligently built.

5. That if the jury should find for the plaintiffs, they are not at liberty to make speculative or contingent profits which the plaintiffs might have made, the basis of their verdict, but can only allow for such injury as they may find that plaintiffs actually sustained, resulting directly from and caused by, the negligence of which the jury may find that the defendant was guilty.

6. That the gist of the action is negligence, the burden of proving which is upon the plaintiffs, and the fact that the wall built by the direction of Hill as agent for defendant, failed to answer the purpose for which it was intended, and that it fell down shortly after it was built, and that a better wall might have been built, are not sufficient to establish such negligence, if the jury believe from the evidence that the defendant used ordinary care in the selection of suitable persons to build the wall, and that the workmen used ordinary care in the construction of it.

7. That even if the jury find that the defendant was negligent, the plaintiffs are not entitled to recover for any of the injuries complained of which were caused by the plaintiffs' own neglect, and which, by the use of ordinary care on their part, might have been avoided.

The Court, (WICKES and STUMP, J.,) granted the plaintiffs' first prayer with the following modification:

If the jury find from the evidence in the cause that the plaintiffs were the tenants of the defendant under the lease offered in evidence, of the premises mentioned in the declaration, and which were used by the plaintiffs for the prosecution of their lawful business at the time of the happening of the alleged injuries, and that during the continuance of said tenancy the witness Hill, as defendant's agent, applied to the plaintiffs for permission to tear down the old partition wall between said premises and those of Rennert and to build a new one, alleged to be necessary on account of improvements which Rennert was making to his property, and that said Hill, as agent for defendant, promised to do said work within four or six weeks, and restore the premises to the plaintiffs in good condition, for the purposes of plaintiffs' business, and that plaintiffs gave such permission upon the condition that their rent should abate during the time such work was being done, and that the defendant, in virtue of such permission, tore down the old wall and proceeded to build the new wall, and completed it within the time limited; and shall further find that the defendant or his agents did not use such ordinary care in the building of said wall as prudent men usually exercise in regard to their own property, but built the same in a negligent or unskilful manner; or after having been completed, said wall was subjected by the defendant or his agents to such negligent treatment that it fell down shortly after its completion, and so injured and exposed the said building and premises as to render them unfit for the prosecution of the business for which the plaintiffs had rented them, and in which they had been engaged; and further find that defendant permitted said premises to remain in that condition until the end of the plaintiffs' tenancy,...