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awning fell, not from any inherent defect in its original construction, or from an unsound condition which rendered it unfit for the ordinary use for which it was constructed, but from an unreasonable and improper use of it for a purpose for which it was not constructed; for the uncontroverted facts are that a great number of people were crowded upon it to witness the march of a public procession through Broadway, and they got onto the awning through a hall in the second story of the building to which it was attached. The hall was then occupied and controlled by a political club to whom it had been rented, and the janitor of the club permitted the public to go through the hall, and out of the windows, onto the awning, taking with them the chairs and benches of the hall. The lower story of the building was also at the time rented to different tenants in possession.
The exact time when the premises were demised to the tenants in possession does not appear. The only evidence upon the question is the following by the defendant Shattuck: "Previous to the 9th of September, 1880, I leased the hall to the Republican Central Club of Oakland. From July to November, 1850, I had no control over the hall in any way whatever." Nor is it made to appear by any evidence what was the condition of the awning at the time the building, or any part of it, was let to the tenants. The sole ground upon which the verdict and judgment seems to be founded is that the relation of landlord and terant existed between the appellants and the occupants of the building, and that it was the duty of the landlords to prevent the fall of the awning, although the building was in possession of their tenants at the time. Therefore it is contended that they, as owners and landlords, are liable to the plaintiff for the consequences resulting to her from the fall of the awning.
But there is no proof that Maria Hillegas had any connection with the construction of the awning, or leased any part of the building, or claimed that those in possession were her tenants, or received any rent from any of them. In the complaint she is described as the administratrix of the estate of William Hillegas, deceased, who, in his life-time, was co-owner with the defendant Shattuck of the building. But as she had no connection with the construction of the awning, had not demised any part of the building, never claimed that the persons occupying it were her tenants, or received any rents from them, she cannot be said to have made herself, as administratrix or otherwise, in any way responsible for the continuance of the awning, even if it was a nuisan e, or for the consequences to the plaintiff from its breaking down. As to her the verdict and judgment are therefore unsustained by the evidence. Oakham v. Holbrook, 11 Cush. 303.
As to the defendant Shattuck the only question is whether, as owner and landlord of the building, he is liable for the consequences to the plaintiff of a nuisance in connection with the building, in the possession and control of his tenants. It is well settled that a landlord is not liable for such consequences unless (1) the nuisance occasioning the injury existed at the time the premises were demised; or (2) the structure was in such a condition that it would be likely to become a nuisance in the ordinary and reasonable use of the same for the purpose for which it was constructed and let, and the landlord failed to repair it (Jessen v. Sweigert, 4 Pac. Rep. 1188; Rector v. Buckhart, 3 Hill. 193; Mullen v. St. John, 57 N. Y. 567; Husssy v. Ryan, 2 Atl. Rep. 728; Wood Nuis., §§ 295, 676; Wood Landl. & Ten. 918), or (3) the laudlord authorized or permitted the act which caused it to become a nuisance occasioning the injury.
The rule of law on the subject is thus stated by the English courts: "To bring liability home to the owner of real property," says Crompton, J., in Gandy v. Jub
ber, 5 B. & S. 73, 485, "the nuisance must be one which is, in its very essence and nature, a nuisance at the time of the letting, and not something which is capable of being thereafter rendered a nuisance by the tenant." "The nuisance," says Blackburn, J., in the same case, "must be, if I may so term it, a normal one." To the same effect will be found the law in cases in the courts of the United States.
In Owings v. Jones, 9 Md. 108, the defendant, a landlord, was held liable to the plaintiff for the consequences of an unlawful act, in the original construction of the sidewalk in front of the building, committed by him before he demised the building. The unlawful act was the making of a hole in the sidewalk, which he covered with a sufficient grating, but without obtaining the requisite license from the city authorities. The plaintiff fell through the hole, and was injured, and the court held, that although the premises were at the time of the accident in the possession of the defendant's tenant, the defendant was liable for the consequences of his unlawful act; and while it is true, says the court, if property not theu a nuisance is demised, but becomes so only by the act of the tenant, the landlord is not liable, yet where the owner leases premises which are a nuisance, or must in the nature of things become so from their user, and receives rent, he is liable.
On like ground, in Bellows v. Sackett, 15 Barb. 96, a landlord was held liable for injury from the drip from a roof built of defective materials, where the injury arose from the ordinary user of the premises. And in Godley v. Hagerty, 20 Penn St. 387, and Carson v. Godley, 26 Penu. St. 111, a landlord was held liable for injuries from the fall of buildings defectively constructed for storage, for which purpose they had been let to tenants in possession. The liability of the owner was made to turn upon the question: "Did the landlord permit the buildings to pass from his possession deficient in some particular essential to their future safety when reasonably used in the business and for the purposes for which they were constructed?" It was admitted that if a building, constructed with ordinary care, falls from the tenant's misuse, or if the tenant had ordered the construction, inspected and accepted it, then he alone would be liable for injuries from its fall. "But," says the court, "if the catastrophe results from occult defect, * * as if the materials be inferior, etc., the landlord, and not the tenant, would be liable. * *The wrong consisted * * * in building and renting a store for a specific purpose for which it was unfit."
So in Swords v. Edgar, 59 N. Y. 28; S. C., 17 Am. Rep. 295, a lessor was held liable for injuries to a third person, caused by the fall of a wharf which was unsafe and defective at the time he leased it, although it was in the possession of the tenant at the time of the accident.
But it is maintained that, whatever may have been the time of the demise to the tenants in possession, the awning was a nuisance per se, because it was constructed over the sidewalk without license or leave of the corporate authorities, and without the sanction of the legislature. Bill. Mun. Corp., § 521; Wood. Nuis.. § 502. That however is the assumption of a fact which nowhere appears in the case. No such issue was raised by the pleadings, or proved at the trial. The complaint contains no allegation which expresses, or from which it could be implied, that the awning was constructed without license or authority. On the contrary, seemingly assuming, that it had been lawfully constructed, liability for the injuries occasioned by its fall was sought to be enforced against the defendants on the sole ground of negligence on their part in suffering it to be in such an unsound and unsafe condition that it fell and injured the plain
tiff. To the maintenance of that allegation, as the ground of her cause of action, all the evidence given for the plaintiff was directed. We must therefore presume that those who constructed the awning acted under authority of law. Yet even upon that assumption, the law would impose upon them the obligation to keep in repair what they were authorized to erect and maintain; and if they, by neglect, unskillfully constructed it, or negligently maintained it, so that it was or became a nuisance, they would be answerable civiliter in damages to a person injured by their neglect to perform their obligation to properly erect and sufficiently maintain it. It was upon that principle that the plaintiff's cause of action was founded and tried.
But there was no such cause of action made out against the appellants; for there was no evidence that the awning was defectively constructed, or that it was in such a condition, at the time of the demise of the building, that it constituted a nuisance, or would be likely to become such in the ordinary uses for the purposes for which the awning was constructed. On the contrary, it was shown by evidence, in which there was no substantial conflict, that the fall of the awning was attributable to an improper and negligent use of the awning by the tenant. It did not fall in consequence of the negligence of the owner to keep in repair, as in the cases of Jessen v. Sweigert, 4 Pac. Rep. 1188, and Burke v. Schwerdt, 6 Pac. Rep. 381. It would not have fallen if it had not been for the people that crowded upon it by the permission of the tenant. It broke down because subjected to a weight too heavy for it to bear. Permitting it to be used in that way was the wrongful act which made of it a nuisance, and as a nuisance it was created by the tenant, and the tenant alone is liable; the landlord is not, unless he is shown to have participated in the wrongful act by authorizing or permitting it to be done. A landlord," says the Supreme Court of Massachusetts, "is not responsible to other parties for the misconduct or injurious acts of his tenants to whom his estate has been leased for a lawful and proper purpose, when there was no nuisance or illegal structure upon it at the time of the lease. Sultonstall v. Banker, 8 Gray, 195. See also Mellen v. Merrill, 126 Mass. 545; Leonard v. Storer, 115 Mass. 86; S. C., 15 Am. Rep. 76; Wood Nuis. 79, 80, 142. Judgment and order reversed, and cause remanded for a new trial.
We concur: Morrison, Ch. J.; Ross, Myrick, Sharpstein, McKinstry, JJ.
ABSTRACTS OF VARIOUS RECENT DE-
APPEAL- UNDERTAKING RECOGNIZANCE -SURETIES. A party giving a bond to perfect his appeal from a District to the Supreme Court, pursuant to an order of the District Court, in an action in which that court had full jurisdiction, may not, after final judgment, object that the form of the security should have been by recognizance instead of by bond, and the bond will be held valid both as against the principal and the sureties. But where the objection to the jurisdiction in a civil action rests simply on the ground that the party appealing did not give security for the prosecution of his appeal in the proper form, but gave a bond instead of a recognizance, where there was no actual requirement to adopt the particular form of a bond, where the conditions of the bond are the same, which are prescribed by statute, and it is not apparent that any injury can have resulted from the substitution of a bond in place of a recognizance; where no suggestion of a mistake in this respect was made in the appellate court, but the cause proceeded without
any objection or suggestion of mistake to a hearing
DIVORCE -DISMISSAL "WITHOUT PREJUDICE."
THE ALBANY LAW JOURNAL.
which the best interests of society are concerned. The
tiff is a sufficient consideration for a promise to pay money. Williamson v. Clements, 1 Taunt. 523. It was a detriment to the plaintiff to give up the old note, as it was good against Brown; and the fact that Brown was insolvent makes no difference, for the note must be taken to have some value, and a small consideration will support a larger promise. Hitchcock v. Caker, 6 A. & E. 438; Creswell, J., in Southall v. Rigg, 11 C. B., 381, 494; Denman, C. J., in Haigh v. Brooks, 10 A. & E. 309; Harrington v. Wells, 12 Vt. 505. In Shortside v. Cheek, 1 A. & E. 57, the giving up of a note against a third person was held to be a sufficient consideration from a promise to pay the amount of it. Parke, J., said: "There is no doubt that the giving up of any note on which the plaintiff might sue would be a sufficient consideration." In Haigh v. Brooks, 10 A. & E. 309, the consideration for the promise was that plaintiff gave up to the defendant his guaranty on behalf of a third person; and it was contended that the guaranty was void for not expressing a consideration on its face, and that therefore the giving of it up constituted no consideration for the promise. But without deciding whether the guaranty could have been made available or not, the Queen's Bench gave judgment for the plaintiffs on the ground that they had parted with something they might have kept, and the defendant obtained that which he desired by means of his prombeise; that both being free, and able to judge for themselves, the defendant would not be justified in breaking his promise on afterward discovering that the thing in consideration of which he made the promise did not possess the value he supposed it did. The Exchequer Chamber affirmed that judgment, both on the ground that the guaranty might have been made good by explanatory evidence, and on the ground-Maule, J., doubting-that the actual surrender of the possession of the paper to the defendant was a sufficient consideration without reference to its contents. Vt. Sup. Ct., July 19, 1886. Churchill v. Bradley. Opinion by Rowell, J.
-CONSIDERATION-IGNORANTIA JURIS.-The surrender of an old promissory note is a sufficient consideration for a new one executed by a surety, although the surety had been released from payment of the old note by the action of the insolvent principal, where both parties knew the substantial facts, but being ignorant of the law, in good faith supposed the surety was liable for the old note. In Stevens v. Lynch, 12 East. 38, the drawer of a bill of exchange, knowing
that time had been given by the holder to the acceptor, but apprehending that he was still liable on the bill in default of the acceptor, three months after it was due, said he knew he was liable, and would pay it if the acceptor did not, and it was held that he was bound by the promise. S. C., 2 Camp. 332. The universal rule is ignorantia juris non excusat, the word jus being used as denoting general law-the ordinary law of the land-and not a private right. 1 Benj. Sales, $611. The cases that hold that money paid in ignorance of the law is not recoverable are analogous. Brisbane v. Dacres, 5 Taunt. 144; Clarke v. Dutcher,
RAILROAD-FAILURE TO STOP AT STREET CROSSING. -The failure of a locomotive engineer to bring his train to a full stop at a street crossing, on discovering that an approaching team is frightened, is negligence. The defendant was not in the legitimate use of the crossing at the time of the accident, and that use involved the plaintiff in danger, avoidable by the defendant postponing its use of the crossing for a few moments. The supreme and first use of a street is for the ordinary travel over it-the right of a railroad to operate its trains across it is subordinate to the use by the general public. Tex. Sup. Ct., June 1, 1886. Houston &T. C. Ry. Co. v. Carson. Opinion by Robertson, J.
WARRANTY-SALE OF GOODS BY SPECIFIED NAME.-In the sale of goods of a kind specified by name there is no implied warranty that the goods bargained for are of a quality suited for any particular use. The evidence on the part of the plaintiff tended to prove that the coal was more suitable for the manufacture of glass than was that which is described
as "the run of the mine," and that both sorts were furnished by the defendant. The plaintiff also offered proof in relation to the nature and extent of the damage to the glass caused by the use of the inferior coal. The evidence on the part of the defendant tended to prove that the coal delivered to the plaintiff was Key-ranty that it shall answer the particular purpose instone coal, fine, and the "run of the mine," and was not inferior to other coal of that description. It will tended by the buyer. In such case the purchaser takes upon himself the risk of its effecting its purpose." be perceived that by the terms of the contract there is no express warranty with respect to the quality of consideration the contract was for the sale and delivRasin v. Conley, 58 Md. 65. In the case now under the coal. In England the older decisions enunciate the general principle that the seller is not liable for de- mine, and it was not even specified in the contract ery of Keystone coal, either fine or the run of the fects of any kind in the thing sold unless there is an that the coal was to be fit for any particular purpose. express warranty or fraud on the part of the seller. A sound price is not tantamount to a warranty of the The evidence of the plaintiff shows that the coal requality of the thing sold. Harvey v. Young, Yelv. 21; scribed in the contract. Md. Ct. App., June 24, 1886. ceived from the defendant was the kind of coal deParkinson v. Lee, 2 East, 322. In Hall v. Conder, 2 C. B. (N. S.) 40, it is said that "the law is quite firmly ion by Yellott, J. Warren Glass Works Co. v. Keystone Coal Co. Opinestablished that on the sale of a known ascertained article there is no implied warranty of its quality." It is true that in some cases there may be what is termed falso demonstratio, as in the sale of goods by samples; and it has been held that under a contract to supply goods of a specified description, which the buyer has had no opportunity of inspecting, the goods must not only in fact correspond to the specific description, but must be salable or merchantable under that description. But no such case is presented by this record. The contract was for Keystone coal, fine coal, and the run of the mine, and the plaintiff's evidence shows that it received coal corresponding to this particular description. The contract specifies Keystone coal, "fine, and the run of the mine," and there is nothing else in its terms to indicate the quality contracted for. When delivered at the place designated, the plaintiff certainly had ample opportunity to ascertain the quality by an inspection. There is therefore no foundation for an implied warranty, and the authority of Jones v. Just, L. R., 3 Q. B. 197, is applicable to the case presented by this record. It is true that at least in two of the States the doctrine of the civil law, that a sale for a sound price implies a warranty of the thing sold, was at one time recognized and adopted. Bailey v. Nickols, 2 Root, 407; Whitefield v. McLeod, 2 Bay, 380. But in most of the States this doctrine has been repudiated. In Seixas v. Woods, 2 Caines, 48, Kent, J., adopting the language of Sir Edward Coke, says that "by the civil law every man is bound to warrant the thing he selleth, albeit there be no express warranty; but the common law bindeth him not, unless there be a warranty in deed or law." And in a later case the same court decided that "there is no implied warranty in a general sale that the quality shall be equal to the price.' Hart v. Wright, 17 Wend. 269. In Mixer v. Coburu, 11 Metc. 561, Chief Justice Shaw The defendant contends that there was an imsays: plied warranty on the sale that the goods were merchantable and sound. But we think this position cannot be maintained. The rule of the common law is well established that upon a sale of goods, if there is no express warranty of the quality of the goods sold, and no actual fraud, the maxim caveat emptor applies, and the goods are at the risk of the buyer." The citation of authorities supplied by the decisions in other States would seem to be unnecessary, as in Barnard v. Kellogg, 10 Wall. 383, the Supreme Court of the United States says: "Of such universal acceptance is the doctrine caveat emptor in this country that the courts of all the States in the Union where the common law prevails, with one exception, sanction it." The rule caveat emptor has always received the sanction of the courts in this State. Hyatt v. Boyle, 5 Gill & J. 120; Gunther v. Atwell, 19 Md. 171; Rice v. Forsyth, 41 id. 404. And in one of the latest cases in which this question was presented the court said: "The law is
well settled that when a known, described and defined
WATER AND WATER-COURSES
GRANDCHILDREN OF TESTATOR
The Albany Law Journal.
ALBANY, SEPTEMBER 18, 1886.
and who was ignorant alike of the art of the troubadour and the weight of a coat of mail." Speaking of the crazy queen Christine, he says: "Her reputation as a murderess did not make her so unwelcome as her character as a bore." She "possessed a considerable amount of miscellaneous information, which was perhaps extraordinary in a
HERE is no reading more entertaining than monarch, but would have been very superficial in a
ing for lawyers is Mr. James Breck Perkins' new
mistress of Rochefoucauld, who becoming penitent
gives a rapid but very comprehensive view of the
ing much to our former stock of information, or
Those gentlemen who believe that nobody can ever tell what any statute means will feel great joy over the disagreement between the Court of Appeal and the lord chief justice in respect to the construction of the statute which provides that costs shall follow the event unless the trial judge shall "for good cause otherwise order." The lord chief justice takes this to invest the trial judge with an absolute and conclusive discretion; and on the other hand the Court of Appeal treat the existence of good cause as a question of fact, and subject to review. Non nostrum tantas componere lites, but here our courts would probably say that the matter was reviewable only for a manifest "abuse of discretion." The lord chief justice argues that "good" implies opinion and a moral judgment, as to which opinions will widely differ, and rather satirically observes that "it is desirable to treat it as a question of fact only if it is wished to multiply appeals, and to introduce the interesting element of tertain uncertainty into the otherwise strict and certain science of the law," and he concludes his judgment in Huxley v. West London Extension Ry. Co., 17 Q. B. Div. 373, with the following lively remarks: "I make no apology for the strength of some of the expressions which I have used. If I have spoken strongly it is because I have felt strongly. It cannot be necessary to disclaim all intentional offense. For the Court of Appeal I have, as every lawyer must have, deep and genuine professional respect. But I think that in their recent decisions on this matter they have unnecessarily, and therefore mischievously, interfered with the discretion of the judges. I do not speak of their dignity and independence. These are personal, and may exist and be displayed as well by the youngest magistrate of the smallest borough as by the lord chancellor himself. But I speak of an interference which, if unnecessary and uncalled for, is a practi