Murray v. Albertson

• Decision Date: 10 March 1888
• Citation: 50 N.J.L. 167,13 A. 394
• Parties: MURRAY v. ALBERTSON.
• Court: New Jersey Supreme Court

13 A. 394

50 N.J.L. 167

MURRAY

v. ALBERTSON.

Court of Errors and Appeals of New Jersey.

March 10, 1888.

(Syllabus by the Court.)

Error to circuit court, Monmouth county; before Justice SCUDDER.

Frederic Parker, for plaintiff in error. R. T. & W. B. Stout, for defendant in error.

DEPUE, J. This suit is an action upon a covenant for the payment of rent. The lease is dated June 1, 1886. The premises demised were a house, with the furniture therein, situate at Spring Lake, a sea-side resort. The letting was for a term of five months, beginning June 1st, and for the rent of $325, payable in advance. The defendant took possession June 3, 1886, and, after 10 days' occupation, quit possession, giving notice thereof in writing. He justifies the abandonment of the premises, and makes defense against the recovery of the rent, on the ground that the cellar was in a damp and unhealthy condition by reason of water that was in it. The water was admitted into the cellar through a hole in the cement on the cellar floor, which had been made by a former tenant chopping wood. The agreement for the lease was made by the defendant with one Potter, the agent of the plaintiff. There was no proof that either the plaintiff or his agent had knowledge of the condition of the cellar when the lease was made. Before the lease was signed the defendant inspected the house, but did not examine the cellar, although he might have examined the cellar if he had chosen. There is no pretense that there was a false representation or fraudulent concealment with respect to the condition of the cellar. The only ground on which the defense could be maintained is that on the letting of a furnished house there is a condition implied that the premises shall be reasonably fit for habitation. The trial judge overruled the defense, and directed a verdict for the plaintiff.

The general doctrine of the law is that, on a demise of a house or lands, there is no contract or condition implied that the premises shall be fit and suitable for the use for which the lessee requires them, whether for use, habitation, or cultivation; and consequently their unfitness for such a purpose will not justify the tenant in abandoning the premises on such grounds and making this defense to an action for rent. Sutton v. Temple, 12 Mees. & W. 52; Hart v. Windsor, Id. 68; Ware House v. Carr, 5 C. P. Div. 507-510; Foster v. Peyser, 9 Cush. 242; Naumberg v. Young, 44 X. J. Law, 332-344; 1 Add. Cont. (8th Ed.) 228. In all cases where a tenant has been allowed, upon suggestions of this kind, to withdraw from the tenancy, and refuse the payment of rent, there will be found to have been a fraudulent misrepresentation or concealment as to the state of the premises which were the subject of the letting, or else the premises proved to be uninhabitable by some wrongful act or default of the landlord himself. 1 Tayl. Landl. & Ten. § 382. The contention is that, where the premises let are a furnished house, there is an exception to the general rule. Smith v. Marrable, 11 Mees. & W. 5, and Wilson v. Finch, 2 Exch. Div. 336, are relied upon in support of this contention. Smith v. Marrable was an action for the use and occupation of a furnished house. At the trial it appeared that, when the tenant took possession, the beds in the house were infested with bugs. He quit the premises, and sent the key to the plaintiffs. Lord ABINGER admitted the defense, and the defendant had a verdict. On motion for a new trial in the court of exchequer the verdict was sustained. Baron PARKE, in delivering the opinion of the court, stated the question to be whether, in point of law, a person who lets a house must be taken to let it in a state fit for decent and comfortable habitation, and whether the tenant is at liberty to throw it up when he makes the discovery that it is not so; and, on the authority of two nisi prius cases, (Edwards v. Etherington, Ryan & M. 268, and Collins v. Barrow, 1 Moody & R. 112,) held that, where the demised premises are incumbered with a nuisance of so serious a nature that a person could not reasonably be expected to live in them, the tenant is at liberty to abandon them. The learned judge put his conclusion, not on the ground of a contract on the part of the landlord that the premises were free from a nuisance. He expressly disclaimed the idea that there was such a contract, and rested his opinion upon the implied condition of law that there was an undertaking to let them in a habitable condition. Smith v. Marrable was decided in January, 1843. In November of the same year the question was again in the same court, in Sutton v. Temple, 12 Mees. & W. 52. The demise was of the use of certain pasture lands, and the eatage of grass thereon growing. The tenant took possession, and put his cattle on the premises. In consequence of the spread of manure in the preceding spring, in which there was a quantity of refuse paint, particles of the paint had been deposited among the grass, from the effects of which some of the tenant's cattle died. He refused to stock the pasture any longer, and gave the landlord notice. In an action for the rent, the defendant contended that he was not liable, inasmuch as the eatage was wholly unfit for the purpose for which it was taken,—the food of beasts. The defense was overruled. Smith v. Marrable was distinguished. Lord ABINGER, C. B., speaking of that case, said that it was "the case of a contract of a mixed nature,—for the Jetting of a house and furniture at Brighton; and every one knows that the furniture upon such occasions forms the greater part of the value which the party renting it gives for the house and its contents. In such a case the contract is for a house and furniture fit for immediate occupation; and can there be any doubt that if a party lets a house, and the goods and chattels or the furniture it contains, to another, that must be such furniture as is fit for the use of the party who is to occupy the house?" The chief baron then cited the instances of warranties of fitness or quality implied on the hiring of goods and chattels, and in the sale of medicines to be administered to a patient. He concluded that "on the same principle, if a party contract for the lease of a house ready furnished, it is to be furnished in a proper manner, and so as to be fit for immediate occupation. * * * The letting of the goods and chattels, as well as the house, implies that the party who lets it so furnished is under an obligation to supply the other contracting party with whatsoever goods and chattels may be lit for the use and occupation of such a house according to its particular description, and suitable in every respect for his use. * * * I regard that case (Smith v. Marrable) as being the case of a mixed contract for the...