
    Charles C. Foster vs. Siegmund M. Peyser.
    A clause in' a lease that “ the owner shall not be liable for any repairs on the premises during the term, the house being now in perfect order,” has respect only to the condition of the house as an edifice in perfect repair, and not to the pre'sent or future purity of the air within it.
    In a sealed lease of a house for a private residence, there is no implied covenant that it is reasonably'fit for habitation.
    This was an action of debt, for the rent reserved in a written lease, signed and sealed by the parties, which stipulated^ bo far as material, that Charles C. Foster, doth hereby “ lease, demise, and let unto S. M. Peyser, a certain brick dwelling-house, situated on Harrison avenue, in Boston, to be used as a private dwelling-house only, and not as a boarding-house; and it is understood and agreed that the owner shall not be called upon or liable for any repairs whatsoever on said premises during the lease, the house being now in perfect order. To hold for the term of three years ‘from the fifteenth day of August, 1848, yielding and paying therefor the rent of three hundred and fifty dollars per annum. And the said lessee doth promise to pay the said rent in four equal quarterly payments, on the fifteenth day of November, February, May, and August, during the lease, and to quit and deliver up the premises to the lessor, or his attorney, peaceably and quietly, at the end of the term, in as good order and condition, reasonable use and wearing thereof, fire and other unavoidable casualties excepted, as the same now are, or may be put into by the said lessor, and to pay the rent, as above stated.”
    The plaintiff declared in this suit for the quarter’s rent, which became due by the terms of the above lease on the 15th day of May, 1850. The trial was in the court of common pleas, before Bigelow, J., and the case came before this court on the defendant’s exceptions.
    It was admitted that the defendant had paid to the plaintiff all the rent which had previously become due under the lease, being six quarters.
    The defendant offered evidence to show that, soon after the execution of the lease, and about the time when the defendant went into occupation of the premises, a noisome and filthy stench existed in the house, which rendered it disagreeable to the inmates and injurious to their health; that, soon after the defendant moved into the house, some members of his family suffered from sickness, and that there was much sickness in his family while he remained on the premises; that this sickness was occasioned or aggravated by the bad state of the air of the house; and that this stench continued without abatement, from the time the defendant moved into the house until he removed therefrom, in April, 1850. The evidence of the defendant also tended to show, that this stench was caused by a defect in, or want of repair of, the drain of the house, and it would have cost from two to three hundred dollars to put the drain in repair, so as to remedy the difficulty, but it did not distinctly appear by the evidence what the precise difficulty was in the drain, nor that such outlay was necessary to put it in good order.
    The defendant also offered evidence to prove that, soon after he moved into the house, he complained to the plaintiff of the stench in the house, and that he repeated these complaints several times subsequently. It also appeared that the plaintiff, in answer to these complaints, expressed his ignorance of the cause of the stench, and that he sent a mechanic to the premises to examine into and remedy the difficulty; that this person, sent by the plaintiff, did go to the premises on several occasions, and made such repairs as he thought necessary, all of which proved unsuccessful.
    It further appeared, that the defendant abandoned the occupation of the premises, on or about the first day of April, 1850, and notified the plaintiff that he should no longer continue to pay the rent of the premises under the lease, alleging that the house had become untenantable. The plaintiff offered evidence to show that the stench did not exist to the extent described by the witnesses of the defendant.
    It was admitted by the defendant that, during the second quarter of his occupation of the premises, he caused pipes and fixtures for the use of gas to be put into the house, having obtained an agreement from the plaintiff to pay one half the cost thereof, at the termination of the lease. It was also in evidence that, during the fifth quarter of the defendant’s occupation, the plaintiff, at the request of the defendant, purchased and caused to be set up in the house a cooking-range, and that the defendant agreed to pay one third of the expense thereof.
    On the foregoing evidence, the defendant asked the judge to instruct the jury, (1) that if, at the time of letting the house, the plaintiff knew of the nuisance, and did not disclose it to the defendant, and that the defendant hired the house, supposing it to be in perfect order, then such letting was a fraud on the defendant, and he was not bound by the lease ; and the judge so instructed the jury; (2) that there was an implied agreement, in the letting of a house for a private residence, that it is reasonably fit for habitation ; (3) that, in this case, there was an express covenant or warranty on the part of the plaintiff, that the house was, at the time of the execution of the lease, in perfect order ; that, therefore, if the jury should find that the house was not in perfect order at the time of the execution of the lease, but was, owing to the nuisance aforesaid, not reasonably fit for habitation during the time the same was occupied by the defendant, he was not fiable in this action.
    The judge refused to instruct the jury as requested by the defendant, on the second and third points above stated.
    The jury were requested by the judge to find, whether the house was in perfect order at the time of the execution of the lease. The jury found a verdict for the plaintiff, and, in answer to the inquiry by the judge, stated that they found the house was not in perfect order at the time of the execution of the lease, but that the fact was not known .to the plaintiff at the time.
    
      S. G. Maine, for the defendant,
    cited Taylor’s Landlord & Tenant, 184; Collins v. Barrow, 1 Moody & Rob. 112; Smith v. Marrable, 11 M. & W. 5; Cowie v. Goodwin, 9 Car. & P. 378; Salisbury v. Marshal, 4 Car. & P. 65.
    
      F. L. Batchelder, for the plaintiff,
    cited Sutton v. Temple, 12 M. & W. 52; Hazrt v. Windsor, lb. 68; Dutton v. Gerrish, ante, 89; Fowler v. Bott, 6 Mass. 63 ; Phillips v. Stevens, 16 Mass. 238; Bigelow v. Collamore, 5 Cush. 226 ; Westlake v. De Graw, 25 Wend. 669.
   Metcalf, J.

As the jury returned a verdict for the plaintiff, it must be taken as found by them that he did not know of the nuisance when he demised the house, and that he was not guilty of any fraud on the defendant.

There were two other questions in the case. First, whether by the terms of the lease, the plaintiff warranted that the house was reasonably fit for habitation. The court ruled that he did not; and we are of opinion that the ruling was right. The words of the lease, on which this question arises, were these: It is understood and agreed that the owner shall not be called upon or liable for any repairs whatsoever on said premises during the term; the house being now in perfect order.” It seems clear to us, that this clause refers only to repairs. It states, in effect, that the house was in such a condition, that no repairs would be necessary during the term of three years, unless some casualty should make them necessary. And, by another provision in the lease, the lessor was to bear the loss caused by casualties. The agreement, that the house was in perfect order,” had respect to its condition as an edifice in perfect repair, and not to the present or future state of the air within it.

The second question was, whether there is an implied covenant, in a sealed lease of a house for a private residence, that it is reasonably fit for habitation. The court refused to instruct the jury that there is any such implied covenant in such a case. And it is well settled, by authority, that there is not.

This question has been discussed in numerous recent cases in England. But it is unnecessary to refer to more than one of them, viz: Hart v. Windsor, 12 Mees. & Welsb. 68, decided by the court of exchequer, in 1844. In that case, Mr. Baron Parke, after reviewing all the previous cases, clearly states the law on this point, and the grounds of it. And as his views are perfectly satisfactory to us, we shall merely quote the following passages from his opinion: “ It is clear that, from the word ‘ demise,’ in a lease under seal, the law implies a covenant — in a lease not under seal, a contract — for title to the estate merely; that is, for quiet enjoyment against the lessor and all that come in under him, by title, and against all others claiming by title paramount during the term; and the word ‘ let,’ or any equivalent words, which constitute a lease, have, no doubt, the same effect, but no more. Shep. Touch. 165, 167. There is no authority for saying that these words imply a contract for any particular state of the property at the time of the demise ; and there are many, 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; Monk v. Cooper, 2 Stra. 763; Belfour v. Weston, 1 T. R. 310; and Ainsley v. Rutter, 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, Aleyn, 26; or where a wharf demised was swept away by the Thames; Carter v. Cummins, cited in 1 Chan. Cas. 84. In all these cases, the estate of the lessor continues ; and that is all the lessor impliedly warrants. It appears, therefore, to us to be clear, upon the old authorities, that there is no implied warranty on a lease of a house, or of land, that it is, or shall be, fit for habitation or cultivation.” “ We are all of opinion, for these reasons, that there is no contract, still less a condition, implied by law, on the demise of real property only, that it is fit for the purpose for which it is let. The principles of the common law do not warrant such a position; and though, in the case of a dwelling-house taken for habitation, there is no apparent injustice in inferring a contract of this nature, the same rule must apply to land taken for other purposes — for building upon, or for cultivation ; and there would be no limit to the inconvenience which would ensue. It is much better to leave the parties, in every case, to protect their interests themselves, by proper stipulations, and if they really mean a lease to be void, by reason of any unfitness in the subject for the purpose intended, they should express that meaning.”

The decision in the foregoing case has been recognized by the English court of common pleas, in Surplice v. Farnsworth, 7 Man. & Grang. 576; by the supreme court of New York, in Cleves v. Willoughby, 7 Hill, 83; and is referred to as the settled law, in Addison on Contracts, 412; Archb. Land. & Ten. 67,158; and 1 Platt on Leases, 613.

In the cases which were cited for the defendant, (except two or three nisi prius decisions, which are virtually, if not directly, overruled by Hart v. Windsor,) in which tenants have been allowed to withdraw themselves from the tenancy, and to refuse payment of rent, there was either fraudulent or erroneous description of the demised premises, or they became uninhabitable by the wrongful act or omission of the lessor.

Judgment for the plaintiff.  