
    Daniel D. Howard v. Henry Doolittle and William H. Burroughs.
    A landlord is, in no case, bound to repair unless by force-- of an express covenant • or contract.
    Even .when a building is let for a special purpose, and its use or occupation for any other is, in terms, prohibited, there is no implied contract or warranty, on the part of the landlord, that the building - shall be or continue - fit for the purpose for which it is demised. -
    Nor, if the building eeases to be habitable, or is wholly destroyed, is the tenant discharged from the payment of the whole or of any part of the rent. He can only be so exonerated by an express agreement.
    A covenant for quiet enjoyment, in a lease; means only that the tenant shall- not-be evicted by a paramount1 title. It relates- only to the title; and not to the actual occupation, when there is no eviction of the premises demised, ■
    The decision of the Court of Exchequer in Smith v. Marráble, 11 M.& W. 5, is anomalous, and is, in effect, overruled by the subsequent- decisions of the same court in Sutton -v. Temple,Vi M. <$c'W.- 62; and in Hart v. Windsor,T2-M. <fc'-W. 68,
    The defendants, tenants of a-hotel under alease from the plaintiff, agreed to repay to him the moneys expended by him in making certain repairs, if it should be settled that, as landlord, he was not liable to make the repairs.1
    
      Held, that, as the lease contained no express covenant or stipulation binding the plaintiff to repair, and no provision that-could be reasonably interpreted as creabing.such an obligation, he was entitled to recover the moneys he had expended.
    (Before Oaklet, C. J., Dueb and Campbell, J.J.)
    June 20; 24, 1854.
    Submission of a-controversy under § 372 of the-Code;
    The following is the statement of facts agreed' on by the parties.
    “On the 27th day of'September, 1852, Daniel D.- Howard leased to Doolittle & Burroughs the premises known as the Irving House, in the city of Hew York, on Broadway, Cham-hers, and Reade streets, for the term ending on the first day of May, 1855.
    “ A copy of the lease is annexed.
    “ On the first day of May, 1853, Bininger, the owner of the premises and buildings adjoining the western portion of the Irving House buildings, commenced to remove and did remove his buildings from his said adjoining lot, and rebuilt on the same.
    “ The removal and rebuilding would necessarily expose the side-walls of the western part of the Irving House to imminent danger of falling down, unless shored up and protected. It became necessary, in the progress of the work' on Bininger’s lot, thus to shore up and protect said walls, in order to prevent their falling down, which would render important parts of the Irving House untenantable.
    . “ One portion of the Irving House adjoining the Bininger premises was leased to Howard by William Onderdonk, and the other portion was leased to him by William Lee, the owners of the respective portions. These leases are referred to in the before-mentioned lease of said Howard to Doolittle & Burroughs, and are hereto annexed. Those persons were duly notified of the intentions and proceedings of Bininger, but refused to do anything towards the protection of the property.
    “ It was claimed by Doolittle & Burroughs, as between them and Howard, that he (Howard) was bound, as their lessor, to protect them, in the enjoyment of the demised premises, from any disturbance by the lawful acts of Bininger; "and that he (Howard) was bound to shore up and protect the walls of said demised premises from falling.
    “ Howard claimed that he was under no. such obligation; that Doolittle & Burroughs took the lease from him subject to all his covenants, and all the conditions and obligations on him contained in the lease of Onderdonk and Lee, and that if Doolittle & Burroughs had any claim, it was not on him, but upon Onderdonk and Lee.
    “ The urgency of the case required immediate action; and, in Order to avoid injury from delay and a .litigation, an agreement was made between Howard and Doolittle & Burroughs, of which a copy is annexed.
    ‘ “ In pursuance of this agreement, Howard proceeded to do all the work required, and in so doing expended twenty-five hundred and sixteen dollars, of which the sum of seventeen btindred and eight dollars and five cents was expended in protecting the Onderdonk, and eight hundred and seven dollars and ninety-five cents in protecting the Lee premises.
    
      “ The question is now submitted to the court, whether Howard was bound by his obligations, as lessor of Doolittle & Burroughs, to shore up or protect the premises, or either portion.
    “ If he was not liable for any part, the court will render judgment in his favor for the amount expended on the whole, and interest; or if liable on either portions of said premises, the court will render judgment in his favor for the amount, with interest, expended bn the part on which he is not liable, with costs, in either case. If Howard was liable on either- or both portions of said premises, the court will render judgment accordingly in favor of Doolittle & Burroughs, with costs. The costs to which either party shall be entitled are hereby fixed at fifty dollars.
    “ It is not deemed necessary to set forth the leases annexed to this statement. All the provisions that were deemed material or relevant, it will be. seen, were referred to by the counsel of the parties upon the argument.”
    The agreement, referred to in the statement, is in these words:
    “ Whereas, Mr. Bininger is removing the buildings, and about erecting new ones, on 83 Chambers street, and on Eeade street, opposite and adjoining premises rented by Daniel D. Howard of William Onderdonk on Chambers street, and of William Lee on Eeade street, and which are rented by said Howard to Doolittle & Burroughs, and it will be necessary that the buildings so rented by said Howard to them should be shored up and protected against injury resulting from such removal and rebuilding, and the said Onderdonk and Lee have refused to do anything toward that object, and the said Doolittle & Burroughs claim that said Howard is bound to db the shoring up and protecting, as their landlord, and said Howard claims that he is not liable to do so; and whereas, it- is necessary that the work be done without delay: How it is agreed, between the parties hereto, that the question of the liability of said Howard shall be settled hereafter, and the said Howard shall go on and do, or cause the necessary work to be done, and if the said Howard is not liable, the said Doolittle & Burroughs shall pay him the expense incurred by him therefor, with interest on moneys paid out, and such shoring up and protecting by him shall not prejudice his right in the matter.
    
      “ Hew York, May 7,1853.
    ■ “ (Signed) D. D. Howard,
    “ Per J. P. Howard, Att’y.
    “ (Signed) Doolittle & Burroughs.”
    
      J. E. Burrill, in moving for judgment for the plaintiff, Howard, argued as follows.
    The question to be determined is whether the plaintiff was bound, by his obligations as lessor of the defendants, to shore up the demised premises. If he was not, he is entitled to recover.
    It is not material to determine upon whom such liability rests, so long as it does not rest upon the plaintiff.
    Bininger had an undoubted right to make the excavation upon his own premises, and it was the duty of the owners of the adjoining premises, to shore them up. (Lasala v. Holbrook, 4 Paige, 169; Radcliff v. The Mayor, 4 Coms. 197 ; 4 Kent’s Com. 7th ed. 532; Panton v. Holland, 17 Johns. R. 92.)
    I. There is no express covenant in the lease from Howard to the defendants, which imposes upon Howard the duty of repairing, keeping in repair, upholding or sustaining the demised premises.
    H. If any obligation of that kind was imposed on Howard by the covenants in the leases of Onderdonk and Lee to him, or arose from his character as lessee in' those leases, that obligation has been assumed by the defendants, by the express covenants in the leases to them.
    IH. In the absence of any express agreement on the part of the landlord to repair the premises, and keep them in repair, there is'no obligation on his part to do either. (Comyn on Landlords & Tenants, 185; 1 Cruise Digest, Title 8, ch. 2, p. 249; Moffat v. Smith, 4 Coms. 126; Mumford v. Brown, 6 Cow. 476; Cleves v. Willoughby, 7 Hill, 90; Platt on Covenants, 267.) Ho matter by what cause the premises are damaged or destroyed, if it be not by the act of the landlord, the landlord is not obliged to repair or rebuild, but may, notwithstanding, recover the rent. (4 Kent’s Com. 7th ed. 575; Arden v. Pullen, 10 Mees. & W. 324; Hart v. Windsor, 12 ib. 68; Hill v. Woodman, 2 Shep. 42.) Although there be covenants in the lease, requiring the lessee to do repairs of a limited character, which are not sufficiently comprehensive to create a liability on the part of the lessee to do repairs generally, still no agreement on the part of the lessor is raised or implied. (Platt on Covenants, 267-275-283; Comyn, 185; Pomfret v. Ricord, 1 Saund. R. 321; Arden v. Pullen, 10 Mees, & W. 324; Holtzapffel v. Baker, 18 Vesey, 115, S. C. 4 Taunt. 45; Belfour v. Weston, 1 Term R. 310.)
    IY. Although there be no express covenant on the part of the lessee to repair and keep the premises in repair, still he is bound to do so. 1. At common law, before the statute of 6 Anne, the lessee was bound to rebuild in case of accidental destruction of the premises by fire. (Cruise Digest, supra; Comyn,. p. 201.) 2. That statute altered the liability of the lessee only in reference to rebuilding in case of destruction by fire, and his liability in other respects was unchanged. (Comyn, 188 ; Co. Litt. 53 (a); Cruise Digest, ubi suprai) 3. A tenant is obliged, without any express covenant on his part, to make all such repairs as may be necessary to preserve them in tenantable repair, having regard to the character and condition of the house at the time of the demise. (Comyn, 189, 200 ; Platt on Covenants, 266. See cases under 2d subdivision of 5th Point.) 4. But although the tenant be not obliged to make the repairs, still it does not follow that the landlord is ; for the tenant may suffer the premises to be unrepaired. (Platt on Covenants, 275 to 283, and cases cited.)
    Y. The defendants covenanted to keep the premises in reasonable order and repair, and also to surrender the premises in as good state and condition as when demised, reasonable use and wear thereof, and damages by the elements excepted. 1. These covenants certainly do not restrict the common law liability of the lessee. 2. Under these covenants, the defendants are obliged to do everything necessary to keep the premises in the condition in which they were when demised; and had they suffered the building to fall for want of proper shoring up, they would be liable on their covenant. (Jaques v. Gould, 4 Cush. 384; Platt on Covenants, 274, 284; Shepherd’s Touchstone, 169,173; Payne v. Wayne, 16 Mees. & W. 542; 4 Kent’s Com. 577.)
    
      T. H. Rodman, for the defendants, insisted on the following points and authorities.
    I. The premises were leased to the defendants for a hotel, and for no other purpose. By the same contract they purchased the furniture and fixtures, at a great price, for the exclusive use of the hotel, and stipulated not to remove the furniture during the term. A part of those fixtures were in the Lee & Onderdonk premises, and those, by his contract with Doolittle & Burroughs, Howard is entitled to remove at the expiration of the leases of those parts of the premises. Under that agreement Howard was bound to see that Doolittle & Burroughs had the beneficial use and enjoyment of the buildings, furniture, and fixtures, for the purpose of keeping the hotel. The shoring was not only necessary to keep them fit for habitation, but was requisite to preserve them from ruin. Had the walls fallen, the object and consideration of the agreement would, to a great extent, have failed. The case is not one of a demise of land merely, and therefore the construction of the agreement, and the rights of the parties to it, do not depend upon the rigid rules of the common law concerning landlord and tenant. But it is a case of a mixed contract for the lease of the hotel, with a letting of the boilers, tanks, pipes, and fixtures of every kind contained in the Lee & Onderdonk premises, so called, together with a sale of all the furniture in the hotel, with liens on the latter for the protection of Howard. The case comes within the principle established by Smith v. Marrable (11 Mees. & Wels. 5), and confirmed by the same court in Sutton v. Temple (12 Ib. 61). The court in the latter case were careful not to overrule the first decision, although they abandoned the idea there expressed, that the law implies a condition or contract on the demise of land, that it shall be reasonably fit for the purpose for which it is taken. (See opinions of Lord Abinger, C. J., pp. 60, 61; and Parke Baron, p. 63; Gurney, B. 64; Rolfe, B. 65.) In Hart v. Windsor (12 Mees. & Wels. 86) the decision in Smith v. Marrable was again called in question and again sustained. The decision in Smith v. Marrable is approved in Cleves v. Willoughby (7 Hill, 83, 88 ; 3 Kent’s Com. 574, 7 ed.).
    H. The operation of the inflexible common law rule in the case of a devise of land, without a covenant on the part of the landlord to repair or rebuild, which requires payment of rent, although the house may be burned down or otherwise destroyed during the term, without the default of the tenant, is repugnant to our sense of justice and equity, and has brought the Court of Chancery in England in conflict with the courts of law. (Crabb on Real Prop. §§ 203, 206; Brown v. Quilter, Ambler, 619.) The Roman law, more just and humane, protects the tenant from the payment of rent until the building is restored. The French law and law of Louisiana also exempt him in the same way. (4 Kent’s Com. 113, 7th ed.) Such a rule as that of the common law should not be extended, but should be strictly confined to its ancient limits, to wit, to the case of a mere demise of land. On that principle the case of Smith v. Marrable can be sustained without violating the rule, and the present case comes fairly within the spirit of that decision. The last clause of the agreement shows that this contract must be treated as a mixed contract; for the covenant of quiet enjoyment is made in consideration “ of the payment of rent,” the delivery of the bond, the payment of all the moneys mentioned, and the performance of all the covenants by Doolittle & Burroughs. The manifest intention of the agreement of the 27th September, 1852, was to transfer the Irving House, with all its furniture, fixtures, and the benefit of its business of entertaining guests, to Doolittle & Burroughs. The good will or business of the hotel was the great inducement, for every other business was expressly prohibited. That business could not be carried on in a house without walls, or in a tenement uninhabitable by- reason of the dangerous condition of the walls. Moreover, the whole of the fixtures in the Lee & Onderdonk premises belong to Howard, and his right to remove them at the end of the term was expressly reserved to him in the agreement by Doolittle & Burroughs: and their use in the house during the term, doubtless constituted an important consideration for their covenants. Yet, had the building fallen, or become a ruin, the fixtures would have been destroyed. Howard would have lost them, and Doolittle & Burroughs would have been deprived of their use. It is plain that the continuance of the business, the great object of the agreement, entirely depended upon the building being kept in a habitable state. When it ceased to be so, as it would of course by the falling of the walls, the enjoyment of the business, and the use of the fixtures would cease, and the object of the agreement would entirely fail. The payment of rent and taxes, and the performance of all the covenants on the part of the purchasers thereafter would be wholly, or in part, without consideration.
    IH. Under the peculiar circumstances of this case, the covenant by Howard for the possession and enjoyment of the premises during the term, we submit is more comprehensive than the ordinary covenant of quiet enjoyment in a lease. That, as a general rule, we concede, relates only to the title and not to the condition of the premises. But this is more comprehensive, and justice would seem to require that it should be extended to the actual beneficial use and enjoyment, as well of the personal property and rights transferred, as of the real estate devised.
    IV. If it be said that Doolittle & Burroughs were bound to shore up the wall of the Onderdonk premises, by reason of their covenant “ to keep them, in reasonable order and repair,” we answer that that covenant only embraces ordinary repairs. That construction of a covenant to repair, it is believed, has been uniform. (Taylor’s Land. and Ten., § 358.) Shoring up a wall to prevent its falling, or rebuilding it after it has fallen, is not repairing. Bebuilding, clearly, is not repairing. Shoring, though not explained in the case, is well known to be a method of sustaining and upholding a wall, bracing it with timbers, not repairing it. That is done where a wall has been damaged by violence or natural decay. The falling of the building, or of its walls, is certainly not such a cause of repair as either party could be supposed to have contemplated, when the contract was made. A covenant, to-repair binds the tenant .only to suffer no further dilapidation than results from natural causes. (Harris v. Jones, 1 Moo. & Ry. 173 ; Young v. Martin, 2 Scott,
    
      277; Stanley v. Twogood, 3 Bing. H". 0. 4; 1 Hilliard on Real Prop. 227.)
    V. It is no answer to the argument against the hardship of the rule, that the tenant who covenants to pay rent, must pay it, whether the house is habitable or not—to say that the tenant may protect himself by covenants in the lease. That is not the protection of the law, but self-protection. Besides, the law is made not for the wise and learned alone, but as well for the innocent and unlearned.- There is no- more reason why the promise of a tenant to pay rent should be enforced when the consideration for that promise has failed, than that his promise based on a sale or the use of personal property should be enforced when he has ceased to possess or use that. The tenant covenants to pay a certain rent, at stated times, for the use of the landlord’s premises. His is a continuing contract. If he ceases to occupy the- premises without his own fault, .why should he pay for them ? - If he does, does he not pay for what he does not receive ? To say he must pay because he has undertaken to pay, is no answer. If it is, he may as well say that the landlord has covenanted that he shall have the quiet possession and use of the premises, and he has not had it. Or he may say, as the bailee of personal property says with effect, that the property of the other has been destroyed by accident, or the act of a third party beyond his control, and he has lost the use of it. If freight is paid in advance, and the ship founder on her outward voyage, the money can be recovered. If charter money for an outward and homeward voyage be paid in advance, and the ship be lost on her homeward voyage, the charter money may be apportioned. Instances may be- multiplied to show the inconsistency of the rule we contend against with other settled rules of law. The policy of the law of England, which gave birth- to this iron rule, does not exist here. It grew out of the feudal system, which secured everything to the owner of the soil, and imposed the hardest terms upon the tenant. Our courts have constantly struggled,.and our legislatures have legislated, against this unjust and unequal principle of that system. The former lean against its forfeitures; the latter have abolished distress for rent and long leases of agricultural lands. In all these ways the public condenanation of those principles has manifested and is manifesting itself.
    VI. If Howard was bound to protect the premises from destruction, or submit to an apportionment of the rent equivalent to the expense, as we say he was—neither in law nor equity is he entitled to recover back the money spent in shoring up the wall. Probably his fixtures, in the building in jeopardy saved by this measure, were worth the cost of the work.
    VH. Had the walls fallen, the premises would have become a private nuisance to Bininger, which he might have abated, and a public nuisance, for which an indictment would have lain.
   By the Court. Duer, J.

The only question that the agreement of the parties requires us to decide, is, whether Howard, as landlord, was bound to make the repairs in question ? If he was not, the defendants have expressly promised to repay to him the moneys, which it is admitted that he expended in making the repairs, and the validity of their promise, as founded on a sufficient consideration, is not questioned.

It may be that the rules of the common law which govern the relation of landlord and tenant, are unsuited to the present condition of society, and, judged by modern notions, are unequal and oppressive; but a court of justice has no power to abolish them by the substitution of others that it may deem to be more reasonable and just, and it is not our intention in this, or in any case, to encroach upon the province of the legislature. When the law is doubtful, reasons of expediency and of equity have great weight, but we have no right to listen to them when the law is clear; since we have no more the power to alter rules plainly settled by prior adjudications, than to repeal the express provisions of a statute. We must declare the law as we find it to be established.

There is probably no rule of the common law more completely settled by a long series of adjudications, than that to create an obligation on thé part of a landlord to repair, in whole or in part, the premises demised, a positive stipulation, an express covenant or promise, is necessary to be proved. It is not a duty which the law considers as flowing from the relation of the parties, or which can be implied from the nature of their contract. Even when a house or other building is let for a special purpose, and its use or occupation for any other is in terms prohibited, there is no implied contract or warranty on the part of the landlord, that the tenement shall be, or continue) fit for the purpose for which alone it is demised. The provision restricts the tenant, but imposes no obligation upon the landlord.

Hor is this all. Hot only is the landlord not bound to repair, in any case, unless by force of an express agreement, but the tenant, even when the tenement demised ceases to be habitable, or is wholly destroyed, is not discharged, in whole or in part, from the payment of the rent subsequently accruing. Unless by a provision in the lease, the rent, upon the happening of such a contingency, is suspended or reduced, the promise of the tenant to pay the whole stipulated rent during the whole term, is construed as unqualified and absolute, notwithstanding the apparent failure of the consideration upon which it was founded.

If these established rules are applicable to the present case, the right of the plaintiff to recover cannot be questioned, and that they are applicable we see no reason to doubt.'

It is not pretended that the lease to the defendants contains an express covenant on the part of the plaintiff to repair; nor, in our opinion, does it contain a single provision that can be legally or reasonably interpreted as creating, or intended to create, such' an obligation.

It is true, that the lease contains a covenant in the usual words, for the quiet possession and enjoyment by the defendants of the premises demised, nor can it be denied that the words may be so interpreted as to favor the argument for the defendants. But the just interpretation of these words we have no right to consider as an open question. A covenant for quiet enjoyment, whether express or implied, it has long been settled, means only that the tenant shall not be evicted by a paramount title. It relates only to the title, and not to the actual possession or undisturbed enjoyment, where there is no eviction, of; the premises demised (Shep. Touchstone, 165,169, 202). We can perceive no grounds for the supposition, that in this case the usual words of the covenant were meant to be understood by the parties in any other than their usual and established sense. If the parties had any other intention, it is not an intention that we can deduce from their language, and, therefore, not an intention to, which, as judges, we can give effect.

The contract of the parties undoubtedly contains many provisions that do not properly belong to a lease, and may, therefore, not improperly be termed a mixéd contract; but we do not understand how these additional provisions (those relating to the sale of the furniture, the restoration of the fixtures, &c.) can affect the construction of those which relate solely to the letting of the premises, so as to vary the relative obligations of the parties as landlord and tenants. It is, indeed, apparent that the parties expected that the premises demised would be fit for occupation as a hotel during the continuance of the lease; but in any case where a house is let for a special purpose, and is believed to be fit for that purpose at the commencement of the lease, there is a similar expectation, and if this expectation is to have, in any case, the force of a positive covenant, the same effect must be given to it in all. The rule of law would then be, that whenever a building is let for a special purpose, there is an implied covenant or agreement on the part of the landlord that it shall continue fit for that purpose during the whole term for which it is demised; but the rule, it has already-been stated, is directly opposite—and that this is so, is sufficiently proved by the authorities to which we were referred by the counsel for the plaintiff, several of which are full to the point, and are uncontradicted.

The only authority on which the learned counsel for the defendants seemed much to rely, is the case of Smith v. Marrable (11 Mees. & Wels. 5); but we think that the authority of the decision in that case may well be doubted, and that, if its authority be admitted, it has no application to the case before us. If the decision proceeded on the ground that there is an implied condition in every letting of a house, that it shall be fit for habitation, we do not hesitate to say that it is not law; and if it proceeded on the ground that the letting was of a furnished house, and included the furniture as well as the house, it may be that it creates a valid exception from the general rule, but this is an. exception not embracing the case before us, since here the furniture was not let with the hotel, but was sold absolutely-to the defendants.

It is said that the decision in Smith v. Marrable was sustained by the same court in Sutton v. Temple (12 M. & W. 52), and in Hart v. Windsor (Id. 68), but, as we understand these sub-' sequent cases, so far from sustaining, they absolutely overrule the prior decision.

In Hart v. Windsor, Parke, B., who delivered the opinion of the court, distinctly admits that the opinion which he gave in Smith v. Marrable was erroneous, and that the case “ could not be supported on the grounds on which he rested his judgment” (12 M. & W. 89) ; and in another part of his opinion he lays down the true rule in the following terms: “ There are many authorities which clearly show that- there is no implied contract that the property shall continue fit for the purpose for which it is demised, as the tenant can neither maintain an action, nor is he exonerated from the payment of rent, if the house demised is blown down or destroyed by fire (Marsh v. Cooper, 2 Stra. 763; Balfour v. Weston, 1 T. R. 310; and Ainsley v. Ritter, there cited), "or gained upon by the sea (Taverner’s case, Dyer, 56 [a]), or the occupation rendered impracticable by the King’s enemies (Paradine v. Jane, Alleyn, 26). In all these cases the estate of the lessee continues, and that is all the lessor implicitly warrants” (12 M. & W., pp. 85, 86).

We observe, in conclusion, that should we even admit.that Smith v. Marrable is a full authority for the position for which it has not unfrequently been cited, namely, that when a building let as a dwelling-house ceases to be fit for habitation, the tenant may abandon the possession, and thus discharge himself from the payment of rent, it would by no means follow that the landlord, in such a case, is bound to place the house in a habitable condition, and is liable to an action in the event of his neglect or. refusal; and it may be confidently affirmed, that not a single case is to be found in which it has been held that such a duty can attach upon the landlord, otherwise than by virtue of an express agreement.

. The plaintiff is, therefore, entitled to judgment for the whole sum, with interest, which it is admitted that he expended; and. placing our decision upon these grounds, it is unnecessary, and would be improper, to express any opinion upon the legal construction and effect of the covenant, by which the defendants .bound themselves “ to keep the premises in reasonable order and condition.” It may be that the defendants were not hound to make the repairs in question; it is certain that the plaintiff was not.'

Judgment for plaintiff, with costs.  