York v. Steward

Decision Date07 November 1898
Citation55 P. 29,21 Mont. 515
PartiesYORK v. STEWARD et al.
CourtMontana Supreme Court

Appeal from district court, Silver Bow county; J. J. McHatton Judge.

Action by J. J. York against J. M. Steward and another, doing business as the Smith Piano Company. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Reversed.

John W Cotter, for appellants.

Charles O'Donnell and Francis Brooks, for respondent.

PIGOTT J.

This is an action for rent alleged to be due upon a lease entered into between plaintiff and defendants on December 31, 1892 by the terms of which plaintiff let to the defendants the storeroom and first basement of a three-story brick building in Butte for the term of 12 months, beginning with January 1, 1893, at the monthly rental of $225 for the first 6 months, and of $250 for each month thereafter. Provision is made in the lease that, if the rent be not paid monthly in advance, the lessor may reenter, and take possession, and, at his option, may determine the lease. It contains the usual covenants against waste or alteration by the lessees, but expresses no covenant whatever on the part of the lessor. Upon issues framed by the complaint, answer, and reply the cause was tried by jury. A verdict was rendered, and judgment entered for the plaintiff. From an order refusing a new trial, and from the judgment, defendants have appealed.

1. Much difficulty has been experienced in the effort to determine the exact ground upon which the defendants, in their first defense and counterclaim, intend to rely. The matters there stated as constituting both a defense and a counterclaim are set forth in a manner so obscure, and with such disregard of the rule requiring conciseness and clearness, that a demurrer attacking the part of the answer now being considered, for want of certainty, as well as for ambiguity, would have been well interposed. Since, however, no objection was taken in the court below or here to the answer upon any ground whatsoever, we have examined the first defense and counterclaim as pleaded, and, after some hesitation, arrive at the conclusion that the pleader intended to aver, substantially, that, on, or just before, the execution of the lease, and while the defendants were negotiating with plaintiff therefor, plaintiff warranted that the building was in all respects suitable for the purpose of carrying on therein the piano and musical instrument business, in which defendants were engaged; that the basement would be ceiled, and put in good condition, and a new sidewalk laid; that defendants, relying upon these representations and warranties, entered into the lease, and in pursuance of the lease went into possession of the building, and placed their stock of musical instruments therein, and remained in possession until August 31, 1893; that the building was defectively constructed; that it was unfit for defendants' business, and that by reason of the defective construction of the plumbing and water fittings in the second story, which was occupied by and in the possession of plaintiff, the sinks and closets situated in the second story, and under the control of plaintiff, were allowed to overflow, and the water permitted to run down into the defendants' place of business, and upon defendants' merchandise, whereby the stock of goods was injured; that defendants repeatedly notified plaintiff of the defective condition of the plumbing and fittings in the building, but that plaintiff refused and neglected to remedy such defects, by which default plaintiff permitted a continuing nuisance to exist; that, because of the defective construction of the building, it was unfit for the use for which it was rented by the defendants, and was untenantable; and that by reason of the representations and warranties of the plaintiff as to the condition of the building, and by reason of its unfitness for the purposes for which it was warranted by plaintiff, and by reason of the injury done by the water, defendants were damaged in their business in the sum of $250.

The first error assigned is the action of the court below in refusing to permit the introduction of evidence tending to prove an oral warranty of the condition of the building. The rule that, in the absence of fraud, accident, or mistake, oral evidence cannot be admitted to alter, add to, or contradict the terms of a written contract, is so familiar that it would seem needless to cite authorities. This rule is applicable to evidence offered for the purpose of establishing an oral warranty, where, presumptively, the parties have reduced their entire contract to writing. Naumberg v. Young, 44 N. J. Law, 331; McLean v. Nicol (Minn.) 45 N.W. 15; Snead v. Tietjen (Ariz.) 24 P. 324. See, also, Sanford v. Gates, 21 Mont. 277, 53 P. 749; Mercantile Co. v. Hopkins, 21 Mont. 13, 52 P. 561; Mast v. Pearce, 58 Iowa, 579, 8 N.W. 632, and 12 N.W. 597; Fisher v. Briscoe, 10 Mont. 124, 25 P. 30; Anderson v. Perkins, 10 Mont. 154, 25 P. 92; Stevens v. Pierce (Mass.) 23 N.E. 1006; De Witt v. Berry, 134 U.S. 306, 10 S.Ct. 536; Braly v. Henry (Cal.) 12 P. 623. The court therefore, did not err in excluding all evidence having a tendency to show that plaintiff, contemporaneously with the making of the lease, or prior thereto, warranted by word of mouth the condition of the building, or promised to lay a new sidewalk, or ceil the cellar. Nor may defendants base their defense and counterclaim upon the breach of an implied warranty of fitness, for in the lease of a house there is no implication of warranty that the property is fitted for the use for which it is let, or that it is suitable for any purpose, or that it shall remain in a tenantable condition. Blake v. Dick, 15 Mont. 236, 38 P. 1032; Gear, Landl. & Ten. § 99. Defendants insist, however, that, having pleaded fraud, concealment, and misrepresentation in the making of the lease, it was competent for them to show the actual condition of the building, and its unfitness for the purpose intended. In answer to this contention it is sufficient to say that neither fraudulent misrepresentation nor concealment is pleaded. The answer, it is true, alleges that the plaintiff represented the building to be suitable, but it is silent as to whether or not the representation was fraudulently made. The averment that the representation was false is tantamount to saying that it was merely untrue. Budd v. Power, 8 Mont. 380, 20 P. 820.

Defendants assign as error the rejection of evidence which they say was offered for the purpose of proving that the building was so defectively constructed in respect of the plumbing, fittings water-closets, and sinks on the second floor, and in the possession of plaintiff, as to cause the water therein continually to overflow, and run down through the ceiling into defendants' storeroom, the effect of which was to deprive them of its beneficial enjoyment, to render it untenantable, and to injure their goods; and that plaintiff failed, refused, and neglected to remedy the defect, although his attention was frequently called to it by the...

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