Enquist v. Didden

41 App. D.C. 179, 1913 U.S. App. LEXIS 1991

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 1, 1913
• Docket: No. 2548
• Status: Published

Opinion

Mr. Justice Robb

delivered the opinion of the Court:

There was no express warranty as to the safety or construction of the demised premises or any part thereof, and, in the absence of such a warranty, one will not be implied. Howell v. Schneider, 24 App. D. C. 532; Keroes v. Richards, 28 App. D. C. 310, 8 Ann. Cas. 575. In the absence of fraud, misrepresentation, or deceit, a landlord is not responsible to his tenant for injuries resulting from a defective condition of the premises. Doyle v. Union P. R. Co. 147 U. S. 413, 37 L. ed. 223, 13 Sup. Ct. Rep. 333; Howell v. Schneider, supra. In the present case, the defendant covenanted generally to make all necessary repairs, excepting only repairs to the roof. That no doubt whatever should remain, the clause was then inserted requiring the defendant “to make all repairs to elevator, pump, and fixtures.” lie now says that almost nine months after he had taken possession of the premises, this elevator, which he had expressly covenanted to keep in repair, was wrecked “by reason of its improper construction.” He characterizes this as a “casualty,” but that characterization, of course, is meaningless, unless warranted by the averments of facts upon which it is based. The averments of fact amount to nothing more than a statement that the elevator was not in proper condition when the defendant took possession of the premises, and that, by reason of that condition, it was wrecked after the defendant had used it about nine months. In Keroes v. Richards, 28 App. D. C. 310, 314, 8 Ann. Cas. 575, Mr. Chief Justice Shepard said: “When the lessee covenants to keep old premises in repair, some authorities hold that his obligation extends no further than keeping them and returning them in as good condition as they were when leased. A better established rule seems to be that his obligation is to first put them in reasonable repair, and then keep them so; particularly if the defects are open to observation, and where there has been no fraudulent representation or concealment by the lessor at the time of making the contract.” There is no suggestion here of any fraudulent representations or concealment by the lessor, and it is apparent, therefore, that the cluty of putting this elevator in proper repair, and keeping it so, devolved upon the defendant. This being so, the conclusion follows that the wrecking of the elevator was not a casualty, but, under the facts before us, merely the natural result of the defendant’s failure to fulfil, the conditions of the lease.

Had the'wrecking of this elevator resulted from some entirely unforeseen cause, some cause not preventable by foresight and prudence, a different case would have been presented. Thus, it has been held that the explosion of a boiler, without negligence on the part of the tenant, who had exercised the greatest degree of care in its use, was such a casualty, as would excuse him from the payment of rent. John Morris Co. v. Southworth, 154 Ill. 127, 39 N. E. 1099. Here, however, as previously pointed out, the wrecking of the elevator did not result from causes entirely unforeseen and beyond the power of the defendant to prevent, had he exercised foresight and prudence, but, on the contrary, it resulted from his own failure to fulfil the terms of the lease. The judgment is affirmed, with costs. .

Affirmed.