
    T. H. Boyer v. The Commercial Building Investment Company et al., Appellants.
    4 6 "False Representations: landlord and tenant. Prior to a lease, the tenant and the landlord’s agent inspected the premises; and the latter, in reply to objections as to the floor, and the light, represented that they would be all right, and when certain partitions were removed, the light would be sufficient and the room comfortable. Held, that such statements being promissory, and opinions on which the tenant had no right to rely, were insufficient to sustain a charge of false representation in procuring the lease.
    5 Landlord and tenant: Covenant of quiet enjoyment. A tenant whose enjoyment and use of the premises is interfered with by the landlords operating boilers in the basement below, making the floor and walls uncomfortable and unhealthy, may recover damages for breach of covenant of quiet enjoyment, irrespective of misrepresentations in making the lease as to the rooms being comfortable and suitable for the tenant’s business.
    1 •Oral Demurrer: An objection to evidence because no cause of action is stated in the petition, being an oral demurrer, may be disregarded.
    
      8 'Waiver by Requesting Instruction: A defendant does not waive his right to object to the insufficiency of the testimony to sustain an issue by asking an instruction thereon, where he was informed that the issue would be submitted to the jury, notwithstanding his protest.
    2 Same. There is no implied warranty by a lessor that the premises-are fit .for occupation or suitable for the purpose to which lessee-intends to put them.
    
      'Appeal from Woodbury District Court. — Hon. J. F.. Oliver, Judge.
    Friday, February 2, 1900.
    Plaintiff leased from defendant corporation a storeroom for merchant-tailoring business in a large building, for a term of three years, from May 8, 1893. He went into possession, and this action is to recover damages because of’ the condition of the property, as hereinafter stated. It is-charged that prior to the execution of the lease, defendants-had constructed and maintained a furnace, boilers, and pipes-in the basement of the building, directly under the room; leased to plaintiff, and that there was a large chimney between said room.and the room adjoining, and that there were certain steam pipes running up through the room leased by him; that the basement was negligently constructed, in. that it had no doors, windows, or openings on the east, north,, and west sides, and there was therefore no means of escape-for steam or hot air. Plaintiff alleges that he did not know of this condition wheji he made the lease, and could not, with; reasonable ca.re, have discovered it. Plaintiff further charges-that defendant used, said boilers, furnace, pipes, and chimney for the purpose of running aim elevator in said building; and for heating the building; that the condition of the-basement so heated during the summer season rendered the floor and walls of the storeroom very warm, making the atmosphere therein sultry, disagreeable, and unhealthy. Damages are asked in the differeimce between what plaintiff-agreed to and did pay, -and what t-hei use of the room was; actually worth; plaintiff having retained it during the term-, of the lease. After plaintiff’s evidence was all in, he-amended his petition, claiming that defendant affirmatively .and falsely represented that the room was cool and comfortable, and all right for plaintiff’s business; that plaintiff relied on these statements in talcing his lease. 'The answer put in issue the various charges. There was a trial to jury. Verdict and judgment for plaintiff. Defendants appeal. — ■
    
      Reversed.
    
    
      Strong & Owen for appellant
    
      T. F. Bevington for appellee.
   Waterman, L

There was a demurrer to the first petition, which was overruled. No error is assigned upon this ruling. When the case cáme on for trial, defendants .objected to the introduction of any evidence, because no canse of action was stated in the petition. This objection was entered of record and overruled. The first assignment of error is based upon this action of the court. This sort of oral demurrer has no place in our practice, and we think the trial court was fully justified "in so disposing of it.

II. The general rule is that there is no implied warranty on the part of a lessor that the premises are fit for occupation, or suitable for the purpose to which the lessee intends putting them. 2 Sutherland, Damages, 126; 1 Taylor, Landlord & Tenant, 382. '

5 6 III. There are exceptions to this rule, but we need not consider them, for this case was submitted to the jury on the theory that defendant® were liable only upon proof of affirmative false representations made by them. The ninth instruction asked by defendants and given by the court is as follows: “You are instructed that, before plaintiff can recover 'iln this action, he must establish by a preponderance of the evidence: (1) That the steam-heating plant, pumps, boilers, and furnace complained of were constructed and operated in an unskillful‘and negligent manner in regard to proper ventilation, alnd that on account of such negligent construction or operation the, storeroom occupied by the plaintiff was Tendered overheated and unfit for occupancy. (2) That the defendant, through its agent, Feldenheimer,. misrepresented the condition of the room in question to the-plaintiff; that the said Feldenheimer knew his representations to be false when he made them, and that he intended to deceive the plaintiff, and caused him to act as he did act to his injury.” It is true that in another instruction the trial court mentioned the fact of concealment as an element of the case, but the jury was fully warranted in concluding from the paragraph just quoted that a verdict for plaintiff' could be founded upon affirmative acts of fraud alone-. This-instruction eliminates from the case every question save that of the false representations made by defendants- agent, and the injury to plaintiff. Defendants’ eoulnsel had objected to the filing of the amendment setting up- these representations. They had objected to all the evidence offered to sustain them, and at the close of plaintiff’s case asked that a verdict be directed for defendants on the ground, among others,, that the evidence- failed to -disclose a,ny fraud on defendant’s part. This motion was overruled. We-do not -think, under the circumstances, defendants-waived their right to object to the insufficiency of the testimony tó sustain the charge of fraud because they a-sked an instruction relating to that issue; for they had already been informed, by the court’s rulings, and by the instructions given, on its own motion, that notwithstanding their protest that issue was to be sent to the jury. We have then to consider-the sufficiency of the testimony to sustain the charge of false representations by the agent,' Feldenheimer. We may premise what we have to say on this point by stating that' the evidence tends to show that the operation, of the furnace ■ rendered the room hot, uncomfortable, and to so-me extent unhealthy, during the plaintiff’s occupancy. Prior to - making the lease, plaintiff went with Feldenheimer to see the room. They went into it together. At this time the fear-thi-rd! of the room,was partitioned off. The partition was of boards for ten or twelve feet, above the-floor, and above that, to the ceiling, it was of glass. The-room had been previously used as a restaurant, and some-tilings connected with that business had been left in it. A. large ice chest nearly covered one of the back windows, and the other window was very dirty. A brick oven stood upon the floor. It is necessary that this condition be understood, in order to appreciate the meaning of what was said. We quote now from plaintiff’s evidence as to what was-said by Felden-hetiiner: “At first I asked him in regard to the floor, on which they had built a brick oven, and what the condition of the floor would be when they took that oven out.; alnd he promised• that it would be-all right in every particular, and he would give me his word that the room would be all right in every particular. I spoke-about its being dark in the room, and be assured me that when the partitions were taken o-ut it would be a fine light, comfortable store room, and be gave me his word for that. When I said that I was afraid that there would be a dark place for-the cutter— Having had trouble before with light, I said, that I was afraid it would be dark, and that the fact of that large building ('a building in the rear) - being up back there-shut off some of the light and air; and he said that it would be light enough when the walls were whitewashed, and a nice,.. cool, comfortable place, and I could take bis word- for it.”' Thiis question was also asked plaintiff: “Wha,t, if anything,, did Feldenheimer say to you on the subject of assuring you that you could rely upon what'he said about the room being-made comfortable and cool ?” The -answer was-: “He said that I did not want to miss the opportunity to get the room, now that it was vacant; that it would be'the best move I ever made in my life, and lie would guaranty that it would be put in first-class condition, and make me a- first-class room in. every respect; that I did not want to miss the opportunity to get it, and he would give me his word it would be all. right in every respect.” A part of this answer was stricken out on defendant’s motion, but we give it etaitire, as it shows better the character of the representations of which plaintiff complains. It is apparent from reading the statements made that what was said had. no reference to 'any change in the construction of the building. The parties were talking about what they could and did tsee of the condition of the room, and much of what Ealdenheimer said was mere matter of opinion, upon which plaintiff had no right to rely. Plaintiff at this time knew nothing of the .location or construction of the furnace. The whole of these representations, too, were of a promissory nature. But the chief defect in plaitatiff’s case, as presented, is not to be found in either of these matters. There is no well-grounded complaint here of the room litself. That was ae represented when plaintiff entered into possession. The real basis of plaintiffs claim is in the acts of defendants after he went into possession. Stripped of some verbiage, we find that the ground of the action is that defendants by their acts interfered with plaintiff’s enjoyment of the leased premises. If there is any cause of action here, it is for this, and for this alone. It is immaterial as to how the basement was constructed. Whether it was properly or improperly built makes no difference. Did the defendants, after plaintiff took possession, do anything to disturb his possession, or interfere with his enjoyment and use of the premises? This is the one question to answer, and upon the response depends their liability. McDowell v. Hyman, 117 Cal. 67 (48 Pac. Rep. 984); Trust Co. v. Palmer, 171 Ill. Sup. 383 (49 N. E. Rap. 553; West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill. Sup. 288 (43 N. E. Rep. 393); Sully v. Schmitt, 147 N. Y. App. 248 (41 N. E. Rep. 514); Jenner v. Carpenter, ( — Tex. — ) (48 S. W. Rep. 46) Keating v. Springer, 146 Ill. Sup. 481 (34 N. E. Rep. 805, 22 L. R. A. 544); Boston & W. R. Co. v. Ripley, 13 Allen, 421; Skally v. Shute, 132 Mass. 367; Jackson v. Eddy, 12 Mo. 209; Alger v. Kennedy, 49 Vt. 109. The landlord, without being guilty of an actual, physical disturbance of the tenant’s possession, may yet do such .acts as will justify the tenant in leaving the premises. If he does not leave, yet he may have a,n action for damages. Keating v. Springer, supra, and cases cited therein. There was no issue of fraud, either of misrepresentation, or, as originally charged, of concealment, to go to the jury. It may 'be said that the proper issue:, as we have stated it, was included in the case made, and that the only effect of the • charge of fraud was to increase unnecessarily the burden -which the law imposed upon plaintiff, and could not have -prejudiced defendants. But we think the trial of this issue -was confusing. Besides this, much evidence was introduced on plaintiff’s part which had no place in the case. Some of :it should not have been admitted, even under the issue tried. Among other matters, a number of witnesses were introduced ’by him who testified to the defective construction of the "basement, amid also expressed opinions as to how it should .have been constructed. This was improper and prejudicial. It may well be that the basement was not properly constructed, and defendants may not have been able to meet •this point. This would doubtless have prejudiced their case -with the jury, although the matter was wholly immaterial'in •the case as it should have been made. Evidence was 'also 'introduced by plaintiff to show the temperature of this room :at a time long prior to his occupancy, and when the condition • of the heating apparatus and the ventilation of the building •ware 'substantially different from what they were during his -occupancy. If this evidence was admissible at all, it was ~to show notice to defendants of the defective condition ■in order to make out the fraudulent concealment alleged. ‘But, under the issue which should have gone to the jury, such notice would be immaterial. Most of the matters •complained of grow out of the issue of fraud. We need mention no others than those of which we have spoken, for -they will not be likely to again arise:.- — Reversed.

Granger, O. J., not sitting.  