McKenzie v. Cheetham

• Decision Date: 01 June 1891
• Citation: 83 Me. 543,22 A. 469
• Parties: MCKENZIE v. CHEETHAM.
• Court: Maine Supreme Court

22 A. 469

83 Me. 543

MCKENZIE

v. CHEETHAM.

Supreme Judicial Court of Maine.

June 1, 1891.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

This was an action on the case by Alexander McKenzie against Linneus Cheetham. The presiding justice, in order to give progress to the case upon the question of damages, ruled pro forma, as matter of law, that under the facts, as developed by the evidence, the defendant impliedly, at least, invited the plaintiff to pass over the premises on the occasion of his injury,—that there was an implied invitation. The jury returned a verdict for the plaintiff, and assessed the damages at $250. Defendant excepted. Exceptions sustained.

Savage & Oakes, for plaintiff.

White & Carter, for defendant.

VIRGIN, J. Action on the case by a guest of the sole tenant of a second-story tenement, occupied as a dwelling-house, against the landlord to recover damages for a personal injury caused by the defective landing of a stairway which was the only means of ingress and egress to and from the tenement.

The tenancy commenced in October, 1888. On the evening of January 10th following the plaintiff made a social call on the tenant; and when, in the act of leaving, he reached the landing, it fell, and caused the injury for which damages are sought.

The foundation of the action is alleged negligence on the part of the defendant; that he did or omitted to do an act in violation of a legal duty or obligation which he owed the plaintiff, and consequent damages.

In the purchase of real as well as of personal estate parties make their own contracts, which the law construes and en-Forces. When one is negotiating for the lease of a dwelling-house, the same as when bargaining for a personal chattel, it is his privilege to inspect and ascertain for himself its actual quality and conditions; and the parties make such express agreements relating thereto as they think fit. If the lessee, instead of exacting from the lessor any warranty of its present or future state of repair, elects to rely upon his own judgment, the law, in the absence of any fraud or concealment on the part of the lessor, leaves the lessee to the operation of the maxim caveat emptor, and he takes the premises as he finds them, for better or worse. Hill v. Woodman, 14 Me. 38, 42; Gregor v. Cady, 82 Me. 131, 19 Atl. Rep. 108; Keates v. Earl of Cadogan, 10 C. B. 591. For the mere letting, without additional stipulations by the lessor, simply implies that ho holds the title, and that the lessee shall quietly enjoy the use and occupation during his tenancy; and not that the premises are or shall be in any particular condition or state of repair, or that they are suitable for the purpose for which they were let. Arden v. Pullen, 10 Mees. & W. 321; Sutton v. Temple, 12 Mees. & W. 52; Hart v. Windsor, 68, 85; Libbey v. Tolford, 48 Me. 316; Gregor v. Cady, supra; Foster v. Peyser, 9 Cush. 242; Welles v. Castle, 3 Gray, 323; Jaffe v. Hnrteau, 56 N. Y. 398, 401; Bowe v. Hunking, 135 Mass. 383; Tuttle v. Manufacturing Co., 145 Mass. 169, 175, 13 N. E. Rep. 465. Such is the general rule of law in this country as between lessor and lessee. If a lessee in this state would have the result otherwise, he must bring it about by some express stipulation in the lease, until the rule shall become modified by the legislature as it was in England in 1885, by St. 48 and 49 Vict. c. 72. Walker v. Hobbs, 23 Q. B. Div. 458. It does not apply to premises over which the lessor retains control as a common passage-way, by which several tenements are reached. Toole v. Beckett. 67 Ale. 544; Sawyer v. McGillicuddy, 81 Me. 318, 17 Atl. Rep. 124.

The rule is subject to an exception arising from a duty which the law, under certain circumstances, imposes upon the lessor because of the relation subsisting between him and his lessee; for if, at the time of the letting, there is some latent or concealed defect in the premises, consisting of original structural weakness, decay, or infectious disease, which the lessor knows renders their occupation dangerous, and is not known to the lessee or discoverable by his careful inspection, the law makes it the duty of the lessor to disclose it; and a failure to do so is actionable negligence if injury results. Cowen v. Sunderland, 145 Mass. 363, 14 N. E. Rep. 117; Bowe v. Hunking, 135 Mass. 380, and cases there cited; Scott v. Simons, 54 N. H. 426, 431; Walden v. Finch, 70 Pa. St. 460; Edwards v. Railroad Co., 98 N. Y. 245; Minor v. Sharon, 112 Mass. 477; Cesar v. Karutz, 60 N. Y. 229; Wallace v. Lent, 1 Daly, 481.

While the rule caveat emptor applies to lessees for the reason that they can, if they will, protect themselves by inspection and contract, no such reason exists for applying it to such third persons as the law denominates "strangers," and do not stand on the same footing with the lessee. But when a lessee enters into a dwelling-house...