
    The Union Trust Co. et al., Exrs., v. Johnson.
    (Decided October 26, 1931.)
    
      
      Messrs. White & Brewer, for plaintiffs in error.
    
      Mr. George W. Spooner, for defendant in error.
   Vickery, J.

This action comes into this court on a petition in error to the common pleas court of Cuyahoga county, the purpose being to reverse a judgment rendered in zavor of Eose Johnson in the sum of $2,150 for personal injuries which she received from the falling of a ceiling in a room which she occupied as tenant from month to month, in property formerly owned by Mr. Joseph Williams, who died testate, leaving the Union Trust Company and Clyde M. White, executors, against whom a suit was brought and recovery had as already stated.

From the record we learn that prior to Williams becoming owner of this property i’t had belonged to the K-W Ignition Corporation, of which he was the principal, if not the sole, stockholder and the president, and there was a man by the name of Anderson who was connected with the K-W Ignition Corporation, who had the management of and the renting of this property, and when Eose Johnson rented the property she made all the arrangements with Anderson, who went with her, and, I believe, under his directions the ceiling of the house was redecorated and renovated.

The tenancy was from month to month, and whatever arrangements were made were made with Anderson. After Williams became the owner, Eose Johnson still remained in possession. Whatever dealings she had in respect to the premises were still made with Anderson, who continued in the management of the property, and to him she paid the rent and reported whenever she had complaints to make about the property. The record shows that several times Anderson came over and looked at the property, and fixed the plumbing in the bathroom, and repaired other things around the premises, including the sewers outside; that she never came in contact with or had any dealings with Williams, the owner, after he became the owner of the property; that after she had been in there for some time, paying the rent, I believe seventeen dollars a month, on a month to month tenancy, she noticed a bulging of the ceiling in a particular room, and called Anderson’s attention to it, and he came in and promised to repair it, but neglected to do so; that she again called his attention to it and said that she would move out unless the ceiling was repaired. Anderson thereupon again promised to repair the ceiling, and she stayed; and a short time thereafter the ceiling fell and hurt her very seriously, for which an action was brought and a judgment recovered.

The real ground of error complained of in this case is the wrongful admission of testimony; that is, in permitting Rose Johnson to testify, inasmuch as the defendants were the executors of the estate of Williams; and so it was claimed that under the statute she could not testify and the court over the objection of the defendants in the court below admitted her testimony generally, and, therefore, committed error.

We recognize the purpose of Section 11495, General Code, which prevents an adverse party from testifying where the defendant is an executor of a deceased person, and the rule is a sound and salutary rule because the person who testifies could testify to things which the dead person might have been able to contradict; and inasmuch as his mouth is closed by death, the plaintiff’s mouth should be closed by law. But there is an exception to that statute (paragraph 2), and that exception is that where a party deals with an agent, and the agent testifies, the adverse party may testify, for the reason no longer obtains. In this case had Joseph Williams been alive he could not have thrown any light whatever upon the transaction, for the whole matter was taken care of by Mr. Anderson, his agent; and as to whatever he did, he (Anderson) was still alive to testify to and did testify. Therefore the reason for the rule would no longer obtain, because Anderson’s mouth was not closed by death and Williams never knew anything at all about the matter. Therefore Anderson having testified, and being able to testify, Eose Johnson could testify fully upon the same subject, and she did testify as to the conversation which she had with Anderson, and of her relations with him and the building, her manner of occupancy, and the payment of rent, and the fact that she had called Anderson’s attention to the defective ceiling. And she also testified as to the extent of her injuries.

We cannot see how there was any error in this, or how the statute is violated. As a matter of fact, it corresponds with the statute, because it comes within the exception.

Now it is said that even though Anderson had authority to promise to repair this ceiling, there was no consideration for such a promise, and there was no duty imposed upon the landlord to repair. Of course, the landlord can keep his property unoccupied, if he wants to; he does not need to repair it; but it is not incumbent upon a tenant from month to month to repair the property, and in this case there is evidence that Anderson upon the complaint of Eose Johnson had repaired the plumbing fixtures in the bathroom and perhaps other things. In any event she threatened to move out unless Anderson repaired the ceiling, and he promised, according to her testimony, that if she stayed and paid her rent he would repair it.

Now it is claimed there was no consideration for his promise to repair. We think there was. The promise to stay and pay the rent was sufficient consideration for the promise to repair, and the reason why she stayed and was injured and did not move out was because of his promise to repair.

We think that the evidence was properly admitted. We think there was a consideration for the promise and that the jury believed a promise was made, and there was evidence to support it; and we believe that the evidence shows that the plaintiff suffered damages, and it is not claimed that they were excessive in any way.

Taking the whole record together we do not see any error in this lawsuit that would warrant us in reversing the judgment. It will, therefore, be affirmed.

Judgment affirmed.

Levine, P. J., and Weygandt, J., concur.  