Sunasack v. Morey

• Decision Date: 16 April 1902
• Citation: 63 N.E. 1039,196 Ill. 569
• Parties: SUNASACK v. MOREY et al.
• Court: Illinois Supreme Court

196 Ill. 569

63 N.E. 1039

SUNASACK

v.MOREY et al.¹

Supreme Court of Illinois.

April 16, 1902.

Appeal from appellate court, First district.

Action by Robert W. Sunasack against Lydia J. Morey and others. From a judgment of the appellate court (98 Ill. App. 505) affirming a judgment sustaining a demurrer to the declaration, plaintiff appeals. Reversed.

A. B. Chilcoat and W. P. Black, for appellant.

Heckman, Elsdon & Shaw, for appellees.

HAND, J.

This is an action brought by the plaintiff in the circuit court of Cook county to recover from the defendants damages in consequence of the presence of sewer gas in the portion of a building leased by him from them, and occupied by himself and family as a barber shop and residence, by means whereof he and his family were made sick, and he was forced to pay out large sums of money, etc. The declaration, as amended, contained a number of counts, which alleged, in substance, that the defendants were the owners of a three-story brick building in the city of Chicago; that it was their duty to keep the same in good order, particularly as to sewerage and the plumbing connected therewith; that, in disregard of such duty, they suffered said premises to be in bad order, and sewer gas to escape into said building in such quantities as to become dangerous to tenants, all of which was well known to the defendants and which was unknown to the plaintiff; that the plaintiff applied to the defendants to lease a portion of said premises, and, upon inquiry, was assured by the defendants that the premises were free from sewer gas and in a healthy condition; that, relying upon such assurance, the plaintiff rented a portion of said premises from the defendants, and occupied the same as a barber shop and dwelling house for himself and family; that soon thereafter he discovered sewer gas escaping from the sewers connected with said building into the portion thereof occupied by himself and family; that he gave notice thereof to the defendants, who promised to remedy the same, which they failed to do; that by reason of the premises he and his family were made sick, and he was required to, and did, lay out large sums of money, etc. A demurrer to the declaration was sustained, and judgment rendered for the defendants, from which the plaintiff appealed to the appellate court for the First district, where the judgment was affirmed, and a further appeal has been prosecuted to this court.

The law is well settled that the rule of caveat emptor applies to a contract of letting, and the landlord is not bound to make repairs unless he has assumed such duty by express agreement with the tenant. The tenant takes the premises as he finds them, subject to his own risk, and there is no implied covenant on the part of the landlord that they are fit for habitation, or fit for the purposes for which they are rented, or that they are in any particular condition. The landlord is therefore not liable for damages resulting to the tenant by reason of the demised premises being out of repair, unless he has expressly bound himself to make repairs by the terms of the contract to let. Where, however, there are concealed defects in the demised premises, attended with danger to an occupant, which a careful examination would not disclose, but which are known to the landlord, the latter is under obligation, imposed upon him by law, to reveal them to the tenant, in order that he may guard against them; and, upon the landlord's failure to perform such duty, he will become liable for whatever damages actually result to the tenant therefrom. 1 Thomp. Neg. §§ 1129-1131; 18 Am. & Eng. Enc. Law (2d. Ed.) p. 224; 2 Wood, Landl. & Ten. § 381. In Cowen v. Sunderland, 145 Mass. 363, 14 N. E. 117,1 Am. St. Rep. 469, it is said (page 364, 145 Mass., page 118, 14 N. E., and page 469, 1 Am. St. Rep.): ‘When there are concealed defects, attended with danger to an occupant, and which a careful examination would not discover, known to the lessor, the latter is bound to reveal them, in order that the lessee may guard against them. While the failure to reveal such facts may not be actual fraud or misrepresentation, it is such negligence as may lay the foundation of an action against the lessor if injury occurs.’ In Anderson v. Hayes, 101 Wis. 538, 77 N. W. 891,70 Am. St. Rep. 930, the court say (page 543, 101 Wis., page 892, 77 N. W., and page 930, 70 Am. St. Rep.): ‘The principle is well settled that a tenant takes leased premises in the condition in which they happen to be when leased, and that the landlord is not liable to the tenant for injuries resulting from lack of repair unless he has contracted to repair, or unless the defect be a concealed one, known to the landlord, and not...