
    Ormond Dutton & others vs. George W. Gerrish.
    In a general lease of a store, or •warehouse, there is no implied warranty that the building is safe, well built, or fit for any particular use.
    Where a contract of hiring contains no warranty, express or implied, that the premises are fit for the purpose for which they are hired, evidence is not admissible of the declarations of the lessor to that effect, made at the time of tha hiring.
    This was an action of trespass on the ease, the trial of which was commenced in this court before Fletcher, J. The case was taken from the jury by consent of parties, and reported for the consideration of the whole court.
    The action was founded on an alleged breach of a supposed warranty by the defendant, that a certain building or warehouse, the lower floor and basement of which had been hired by the plaintiffs of him, was reasonably fit for occupancy and use as a dry goods warehouse, in the several stories thereof. To sustain the action, the plaintiffs introduced a written agreement between George W. Gerrish on the first part, and Dutton, Richardson & Co. on the second part, as follows: — “ That the first party agrees to let the warehouse, first floor and basement, in Federal street, next to that of S. Parsons & Co. for the term of five years from January 1,1848, for the sum of eighteen hundred and fifty dollars per annum, payable quarterly, and to put the same in such repairs and order, with'such furniture as the party of the second part may require, and much in the same manner as that done for Messrs. Parsons & Co.; the party of the second part also to pay taxes; the party of the second part also agree to lease the store now occupied by them to the party of the first part, for the remainder of the term that said store is leased to the party of the second part, and at the said terms. It is also agreed, that the rent of neither store is to be paid by the contracting parties till from and after the 1st of April next.
    The parties of the first and second part hereby agree to take said store, as above stipulated, and to make leases as soon as convenient. It is also agreed, that such furniture and fixtures as are now owned by D., K,., & Co. may be removed or sold for their benefit. ■ And it is also understood and agreed, that the quarterly rent and taxes of store in Water street shall be deducted from the quarterly rent and taxes of store in Federal street, and the excess only be paid by the parties of the second part to the parties of the first part; and also the parties of the first part agree to whitewash the walls reflecting the light in the store in the rear.”
    The plaintiffs then offered to prove that under and in pursuance of this agreement, they put their goods into the parts of the building specified in the agreement, and that, shortly after, the building fell down, by means of which the plaintiffs’ goods were damaged to a great amount, for the recovery of which damage the suit was brought.
    The plaintiffs further offered to prove that the building was a new, large building, the plaintiffs, and others who hired the other parts of the building about the same time, being the first occupants; that the defendant was a master builder, and that the building was erected by himself, and under his own direction and inspection, and was badly, improperly, defectively, and insecurely built, so that it was not reasonably fit for occupancy as a dry goods warehouse; and that, by reason of its being badly, improperly, defectively, and insecurely built by the defendant, all which was unknown to the plaintiffs, and could not be discovered by them, the warehouse fell down and broke up, and injured and destroyed the plaintiffs' goods.
    
      The plaintiffs further offered to prove that, before the written agreement between the parties was made and entered into, one of the plaintiffs asked the defendant if the building was sufficiently strong; he replied that it was, and that he would warrant it would stand if filled with pig lead.
    The plaintiffs did not charge or offer to prove any actual fraud on the part of the defendant.
    The plaintiffs claimed that, upon the agreement between them and the defendant, and the proofs offered, they were entitled to maintain their action, upon the ground of an express or implied warranty by the defendant, that the building was reasonably fit for occupancy and use, as a dry goods warehouse.
    On the part of the defendant it was insisted that, upon the agreement between the parties, and the proofs offered, there was, in point of law, no warranty on the part of the defendant, expressed or implied, on which this action could be maintained.
    If the court are of opinion that the action cannot be maintained, then judgment is to be entered for the defendant, as on a statement of facts or on a nonsuit, as may be directed by the court. If the court are of opinion that the action can be maintained, then the case is to be sent to the jury for trial, open to any defence which the defendant may be able to make.
    
      W. Brigham, (with whom was R. Choate,) for the plaintiffs.
    The party agreeing to lease, in this case, impliedly warranted that the store was reasonably fit for the purpose for which it was leased, he being the builder and knowing its defects, the same being great. Howard v. Hoey, 23 Wend. 350; Smith v. Marrable, 11 M. & W. 5 ; Sutton v. Temple, 12 M. & W. 52; Hart v. Windsor, lb. 68 ; Salisbury v. Marshall, 4 C. & P. 65 ; Edwards v. Etherington, Ryan & Moody, 268; Collins v. Barrow, 1 Moody & Robinson, 112; Pickering v. Dowson, 4 Taunt. 779; Jones v. Bright, 5 Bing. 533; Brown v. Edgington, 2 Man. & Gran. 279; Gardiner v. Gray, 4 Camp. 144; Gallagher v. Waring, 9 Wend. 20 ; Vam, Bracklin v. Fonda, 12 Johns. 468; Bluett v. Osborne, 1 Starkie’s R. 384; Gray v. Cox, 4 B. & C. 108; Laing v. Fidgeon, 6 Taunt. 108; Chitty on Con. 6th Am. ed. 440; 1 Cushing’s Domat, 266 ; 1 Evans’s Pothier on Obligations, 43-148.
    
      II. F„ Durant, for the defendant.
   Shaw, C. J.

The plaintiffs, in the present case, set out their claim, in seven different counts, in an action on the case. The gravamen of them all is, that, in the spring of 1848, the defendant, by a memorandum in writing, agreed to let to the plaintiffs the lower floor and cellar of a large warehouse, in Federal street, for the term of five years, at a rent of $1,850 per annum. In some of the counts, it is alleged that the defendant falsely warranted the store or warehouse; and in others, that he falsely represented the same to be reasonably fit for occupancy; that he was the builder, that it was fit for occupancy as a dry goods store, that it was so strong that, if filled with pig lead, it would not break down; that to induce the plaintiffs to hire it, the defendant falsely warranted it to be strong and stanch, when, in fact, it was weak, negligently and improperly constructed, insufficient, and this well known to the defendant; that the plaintiffs, relying on such warranty and representation, did agree to hire the same, entered on the same, and removed their goods into it; that, by reason of the weakness, ill-construction and insufficiency of the warehouse, it fell down, by means of which their goods were greatly damaged.

We suppose it well settled by the authorities, that, although covenant or assumpsit, according to the form of the contract, would lie for a breach of a contract of warranty; yet, alleging such warranty to be false, case will also lie, so that counts on a false warranty may be joined in the same declaration with counts on a false representation. Williamson v. Allison, 2 East, 446; Stuart v. Wilkins, 1 Doug. 18.

Still, the question is, whether, in the first case, there appears to have been either a false warranty or false representation, upon which the action will lie.

At the trial, the charge of false representation, or fraud in fact, or an intention to deceive, was disclaimed, so that the only question remaining is, whether there is ground to charge the defendant with having warranted the warehouse to be strong and sufficient for occupancy as a dry goods store, when in fact it was not in that condition. The right of action in this form is founded on the assumption that, if the defendant will warrant a fact to be true, without knowing whether it is true or not, even believing that it is true, but without knowing it, although he may have no intent to deceive, yet if, in fact, it is not true, and a third person, relying on such warranty, acts upon the faith of it and sustains damage, case will lie. 2 East, 446, cited above. Whether there was such warranty, therefore, must depend on the memorandum in writing, in which the entire agreement was contained.

Some question was made, whether this memorandum, somewhat informal, was to be regarded as a present demise, or for a term of years, or an executory stipulation for a lease to be made afterwards. In general, when one stipulates that another shall have the use, benefit, and enjoyment of real estate, definitely described, accompanied by an actual entry and enjoyment of the estate, this is evidence of a present demise. Fiske v. The Framingham Manufacturing Co. 14 Pick. 491. But perhaps this is immaterial, as the relation of landlord and tenant subsisted between these parties ; and whether the plaintiffs were tenants for years or tenants at will, is not material to this action. Whatever species of tenancy subsisted, it was constituted by the memorandum in writing, and must be regulated and governed by it.

By this memorandum, the defendant agrees to let the warehouse to the plaintiffs, for the term of five years, &c.; to put the same in such repairs and order, with such furniture, &e. But there is no warranty, contract, stipulation, or undertaking, that the warehouse is strong, well built, suitably constructed, or fit for any kind of business whatever. There is, therefore, no express warranty, which was broken by the falling of thei store.

And this court are also of opinion that there was no implied warranty in this memorandum, if, indeed, a breach of an implied warranty, equally with that of an express warranty, were evidence of deceit. It is not described as hired or intended for any specific purpose, or for any particular kind or branch of business; and, though it was known that the plaintiffs were dealers in dry goods, and would probably use the warehouse in that business, yet that is not expressed in the written agreement ; and it would have been quite within the right of the lessees to use the estate for any other branch of business, or for a manufactory or dwelling house. It therefore does not come within the authority of cases, wherein furnished rooms, in a lodging house, are let for parlor, bedroom and the like, for a particular season of the year, in which a warranty may be implied that the rooms are properly furnished and suitably fitted for such particular use. Smith v. Marrable, 11 M. & W. 5.

But the authority of these cases has been much shaken, if not wholly overruled, so far as it applies to real estate, by the subsequent cases. Sutton v. Temple, 12 M. & W. 52; Hart v Windsor, 12 M. & W. 68.

If there was any warranty, express or implied, it was a part of the contract of hiring, and not something separate and independent, and must, therefore, be found as one of the items or terms of that contract. The evidence, therefore, offered for the purpose of showing that the defendant said to one of the plaintiffs, that the warehouse was strong enough to stand if filled with pig lead, was not admissible; it would be adding to the terms of a written agreement by parol evidence, which is contrary to the rules of law. The court are, therefore, ol opinion, that the action cannot be maintained.

Plaintiffs nonsuit.  