Wilkinson v. Clauson

• Decision Date: 05 April 1882
• Citation: 12 N.W. 147,29 Minn. 91
• Parties: George Wilkinson v. George Clauson
• Court: Minnesota Supreme Court

12 N.W. 147

29 Minn. 91

George Wilkinson v. George Clauson

Supreme Court of Minnesota

April 5, 1882

Action brought by plaintiff in the district court for Ramsey county to recover rent due under a lease to defendant. The action was tried by Brill, J., a jury having been waived, and judgment was ordered for plaintiff for the amount claimed. Defendant appeals from an order refusing a new trial. The case is stated in the opinion.

Order affirmed.

E. C Palmer, for appellant.

Plaintiff's statements were not expressions of opinion, but representations of existing facts, as to which he had special knowledge and defendant had none. Faribault v Sater, 13 Minn. 223; Johnson v. Wallower, 15 Minn. 472; Wilder v. De Cou, 18 Minn. 470; Kelly v. Rogers, 21 Minn. 146; Burr v. Willson, 22 Minn. 206. Defendant was not bound to investigate for himself. Faribault v. Sater, 13 Minn. 223; Porter v. Fletcher, 25 Minn. 493. There was a misrepresentation upon a point material to the due enjoyment of the property. Hazard v. Irwin, 18 Pick. 95; Rosevelt v. Dale, 2 Cow. 129; Tyler v Disbrow, 40 Mich. 415; Wallace v. Lent, 1 Daly, 481.

The nature of the transaction between the parties implies that plaintiff's stores were safe and adequate, and that defendant should have quiet and undisturbed possession during the stipulated period. Mack v. Patchin, 42 N.Y. 167; Young v. Hargrave, 7 Ohio 348; Ellis v. Welch, 6 Mass. 246; Cesar v. Karutz, 60 N.Y. 229; Thomas v. Winchester, 6 N.Y. 397; Stott v. Rutherford, 92 U.S. 107; Ainsworth v. Ritt, 38 Cal. 89; Dexter v. Manley, 4 Cush. 14; Byxbie v. Wood, 24 N.Y. 607; People v. Herrick, 13 Wend. 87; Marsh v. Webber, 13 Minn. 109; McAlpin v. Powell, 1 Abb. (N. C.) 427; Swift v. East Waterloo Hotel Co., 40 Iowa 322; Scott v. Simons, 54 N.H. 426; Alger v. Kennedy, 49 Vt. 109; Morley v. Attenborough, 3 Exch. Rep. 500; Brown v. Edgington, 2 Man. & Gr. 279; Shepherd v. Pybus, 3 Man. & Gr. 868; Whittle v. Webster, 55 Ga. 180.

Chas. N. Bell, for respondent.

OPINION

Vanderburgh, J.

The defendant entered into possession of the demised premises prior to November, 1878, and moved out in March, 1880. This action is to recover rent due for the last two months of his occupancy. The lease was for a term of three years and up-wards, and before it was executed certain negotiations took place in reference to the stores to be occupied, then being built, during which, as the trial court finds, "the plaintiff recommended said stores to defendant as suitable for his business, which was that of merchandising, and stated to him that there was an excellent sewer connected with the stores, which would * * * make the premises clean." This appears to be the sum of the representations upon which defendant predicates his charge of fraud in connection with the leasing of the premises. The lease itself expresses no covenants on plaintiff's part which are claimed to have been broken. It contains no representations on the subject of the sewer or the suitableness of the tenement for defendant's use; but, aside from the usual covenants for letting, its provisions relate wholly to the matter of the finishing and fitting up of the rooms to be occupied by defendant, including the basement, in which defendant proposed to store goods. At the time of the negotiations the sewer had been constructed with ordinary care and prudence by plaintiff, and both parties believed the same sufficient, though it was not examined by defendant; and the same was in fact safe and sufficient in ordinary storms, but proved insufficient and inadequate in a heavy rain storm of exceptional severity, which occurred while defendant was occupying the premises, in July, 1879, and said sewer was broken, and the basement flooded with water therefrom in connection also with a large amount of surface water, and the defendant's goods therein were greatly damaged. No other damage is complained of in the case.

The findings of the court, embracing the foregoing facts, are fully supported by the evidence, and, we think, constitute no defence to plaintiff's claim for rent, or cause of action for damages by way of counterclaim. It is apparent that the lease was made in entire good faith, and, the plaintiff having exercised the care of a man of ordinary prudence in the construction of the sewer, which is the only matter complained of, his general statement in reference to the condition and character of the premises must be considered as the expression of his opinion and judgment in the matter, and is insufficient to establish the fraud charged. It was not properly matter of false description, or erroneous statement of facts not known to be true, which might mislead the party to his injury; neither was it competent evidence of the agreement and understanding of the parties, being outside the writing. Dutton v. Gerrish, 9 Cush. 89.

Laying out of view the question of fraud in the case, the plaintiff's obligation and duty rest wholly in the written contract. The words "demise or let," or their equivalent, in a lease, imply a covenant for title and for quiet enjoyment, but no other covenants on the part of the lessor are implied therein. Foster v Peyser, 9 Cush. 242. There is no implied covenant in this lease that the stores were provided with drainage facilities suitable for their location, or that they were suitable for defendant's business for that or any other reason. The lessee is the party most deeply...