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England and Wales High Court (Exchequer Court) Decisions
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Cite as:  EWHC Exch J55, (1843) 12 M & W 68
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152 ER 1114, (1843) 12 M & W 68
B e f o r e :
Debt. The declaration alleged, that whereas theretofore, to wit, on the 23d June, 1843, by a certain memorandum of agreement made and entered into between the plaintiff of the one part, and the defendant of the other part, the plaintiff agreed to let, and the defendant agreed to hire and take of the plaintiff, a certain messuage or tenement and garden ground, in the said memorandum of agreement particularly mentioned and described, with the use of several fixtures and things therein, for the term of three years from the 24th of June then instant, at the yearly rent of £50, payable quarterly, on the 29th of September, the 25th of December, the 25th of March, and the 24th of June, in each year of the said term, free from all deductions whatsoever; the first payment thereof to be made on the 29th of September then next ensuing, the plaintiff paying all rates and taxes in respect of the said premises, and the defendant paying all personal rates and taxes; and the defendant, amongst other things, agreed to preserve the said messuage or tenement and premises in good and tenantable repair and condition, and to deliver up the said messuage or tenement and premises in like repair and condition, together with all the keys, fixtures, and other things thereupon or belonging thereto, (reasonable wear and tear and damage by fire only excepted), at the end or other sooner determination of the said term of three years, as by the agreement fully appears; by virtue of which said agreement the defendant then entered into and became possessed of the said messuage or tenement and premises, and was and continued possessed thereof from the said 24th of June, 1843, until and upon the 29th of September in the same year, when a large sum of money, to wit, 12l. 10s. of the rent aforesaid, for one quarter of a year of the said term, ending on the day and year last aforesaid, and then last elapsed, became and was due and payable from the defendant to the plaintiff, under and by virtue of the said agreement, and still is in arrear and unpaid to the plaintiff, whereby, etc.
Pleas: first, a traverse of the agreement stated in the declaration; secondly, that the said messuage or tenement was so demised and let to the defendant for the purpose of his inhabiting the same, and dwelling therein during the said term: and that before and at the time of making the said agreement, and also at the time when the defendant entered into and became possessed of the messuage or tenement and premises, as in the declaration alleged, and from thence until and at the time of the defendant's quitting, vacating, and abandoning the possession of the same, as hereinafter mentioned, the said messuage or tenement was not in a reasonable, fit, and proper state or condition for habitation or dwelling therein; and the same was then, and during all the time aforesaid, in that state and condition that the defendant could not reasonably inhabit or dwell therein, or have any beneficial use or occupation of the same, for and by reason of the same being greatly infested, swarmed, and overrun with noxious, stinking, and nasty insects, called bugs, and not for or by reason of any act, default, or omission of the defendant; and the defendant, before or at the time of his making the said agreement, had no notice or knowledge thereof; and the defendant afterwards, and after he so entered and became possessed of the said messuage or tenement, and before the said sum of 12l. 10s., or any part thereof, became due or payable, to wit, on the day and year last aforesaid, quitted, vacated, and abandoned the possession, and wholly ceased and abstained from all further occupation or possession of the said messuage or tenement and premises, and suffered and permitted him to take and have and retain, and he could and might have taken and retained, possession of the said messuage or tenement and premises; and the defendant from thence hitherto hath ceased all further possession, use, or occupation of the said messuage or tenement and premises, and not derived any benefit there from: and that at and from the time of the commencement of the said term, until the time of his so quitting, vacation, and abandoning possession of the said messuage or tenement and premises, and ceasing all further occupation thereof, he had no beneficial use or occupation whatever of the same. Verification.
Thirdly, that he was induced and persuaded to make and did make and enter into, the said agreement and promise in the said declaration mentioned, by the fraud, covin, and misrepresentation of the plaintiff and others in collusion with him. Verification.
Replication to the second plea, de injuria; and to the third, that the defendant was not induced to make, and did not make or enter into the said agreement by the fraud covin, or misrepresentation in the plea mentioned.
The cause was tried before Rolfe, B., at the sittings in Hilary Term, 1844, when the facts alleged in the second plea having been fully proved, a verdict was found for the defendant on the issue raised by that plea. C. G. Addison, on the subsequent day in the same term, obtained a rule for judgment non obstante veredicto, on the ground that the facts stated in the plea were no answer to the action. Against which rule
Watson and Humfrey shewed cause (Feb. 10, 1844). This is not an action of debt for rent, but an action upon an agreement in the nature of a lease, whereby the plaintiff agreed to let to the defendant a messuage and garden ground, with the use of several fixtures and things therein, for the term of three years from the date of the agreement, at a certain rent payable quarterly, the defendant agreeing to preserve the premises in tenantable repair and condition, and so to deliver them up at the end of the term; by virtue of which the defendant entered and became possessed of the premises, and continued so possessed until a quarter's rent became due under and by virtue of the said agreement. And the question raised by the second plea is, whether, where a house is let under such an agreement, there is any condition or warranty implied by law on the part of the landlord, that the house is reasonably fit for the purpose of habitation. The plea alleges that the house was let to the defendant for the purpose of his inhabiting the same, but that at the time of the agreement, and of his entering, and until his quitting the same, it was not in a fit state or condition for habitation, but in that state and condition that the defendant could not reasonably inhabit or dwell therein or have any beneficial use or occupation of the same, by reason of its being greatly infested with bugs, and not for or by reason of any act, default, or omission of the defendant; that before the rent became due he quitted and abandoned the possession, and gave notice thereof to the plaintiff, and had no beneficial use or occupation of the same. The jury have by their verdict found that all these facts were true; therefore it must be taken that the house was not fit for habitation, and that the defendant, without any default of his own, has had no beneficial occupation of the house. Now it is submitted, that under such an agreement, for the demise of a house for the purpose of habitation, there is an implied warranty that it is fit for that purpose, and that the plea contains a good answer to the plaintiff's claim for rent. In the case of the sale of specific chattels, it cannot be questioned that there is such an implied warranty. The law on the subject of implied warranty in the case of specific chattels is thus laid down by Parke, B., in Sutton v. Temple (ante, p.64): "One class of cases is, where the agreement is for a specific chattel in its then state, as in Parkinson v. Lee (2 East, 314): there there is no implied warranty of its fitness or merchantable quality. Another class of cases is, where a person is employed to make a specific chattel: there the law implies a contract on his part that it shall be fit for the purpose for which it is ordinarily used: and there is an intermediate class of cases, where goods are ordered for a specific purpose, from a person in a particular department of trade, in which case, also, Brown v. Edgingon (2 Man. & Gr. 279; 2 Scott, N. R. 496) is an authority for saying there is an implied undertaking that they shall be fit for that specific purpose" Bridge v. Wain (1 Stark. N. P. C. 504) and Shepherd v. Kain (5 B. & Ald. 240) are also authorities in support of that view of the law. Warranties of this nature run through the whole law of this country. If I insure a ship from London to Calcutta, there is an implied warranty that she is seaworthy, and fit for the intended voyage. So in a contract between landlord and tenant on the letting of premises, there is an implied warranty that the tenant will keep the premises in repair: or in the case of a farming lease, that he will manage the farm according to the custom of the country. There is a variety of other cases stated in Com. Dig., Condition in Law (R.). There is no sound distinction in this respect between real and personal property. The law is the same o the sale of a chattel and the letting of real property; and if I let a house for the purpose of habitation, it is implied that I warrant that it is fit for that purpose. The nearest case to the present is that of Smith v. Marrable (11 M. & W. 5), and there it was expressly held to be an implied condition in the letting of a house, that it should be reasonably fit for habitation; and that if it be not, as where it is greatly infested with bugs, the tenant may quit it without notice. That is an authority directly in point. It was an action brought to recover the balance of five week's rent of a furnished house at Brighton, taken by the defendant under an agreement whereby the plaintiff agreed to let, and the defendant to take the house, at the rent of eight guineas per week, for five or six weeks, at the option of the defendant; nothing being said in the agreement about the furniture. In that case Parke, B., says, "This case involves the question, whether, in point of law, a person who lets a house must be taken to let it under the implied condition that it is in a state fit for decent and comfortable habitation, and whether he is at liberty to throw it up when he makes the discovery that it is not so. The case of Edwards v. Etherington (Ry. & M. 268, S. C.; 7 D. & R. 117) appears to me to be an authority very nearly in point. There the defendant, who held a house as tenant from year to year, quitted without notice, on the ground that the walls were in so dilapidated a state that it had become unsafe to reside in it. And Lord Tenterden, at Nisi Prius, held these facts to be an answer to an action by the landlord for use and occupation; telling the jury, that, although slight circumstances would not suffice, such serious reasons might exist as would justify a tenant's quitting at any time; and that it was for them to say whether, in the case before them, such serious reasons existed as would exempt the defendant from the plaintiff's demand, on the ground of his having had no beneficial use and occupation of the premises. The jury found for the defendant, and the Court of King's Bench was afterwards moved for a new trial, on the ground of misdirection; but they refused to disturb the verdict. There is also another case, of Collins v. Barrow (1 Mo. & Rob. 112), premise which were noxious and unwholesome, for want of proper sewerage. These authorities appear to me full to warrant the position, that, if the demised premises are incumbered with a nuisance of so serious a nature that no person can reasonably be expected to live in them, the tenant is at liberty to throw them up. This is not the case of a contract o the part of the landlord that the premises were free from this nuisance; it rather rests on an implied condition of law, that he undertakes to let them in a habitable state." That seems to be most reasonable, for it surely must be an implied condition on the letting of a house, that it is fit for habitation. In Sutton v. Temple (ante, p. 64), it was attempted to distinguish the case of Smith v. Marrable on the ground that there the demise was of a furnished house, and therefore it was not merely a contract relating to the realty, but a mixed contract, relating both to the house and the personal chattels of which the furniture was composed. But Edwards v. Etherington and Collins v. Barrow were not cases of furnished houses; nor was the furniture mentioned in the agreement in Smith v. Marrable, or the case put upon the ground; and it is difficult to see any sound distinction in this respect between a house being furnished or unfurnished. If, however, there is such a distinction, the agreement in this case was that the defendant was to have the use of the fixtures, which would bring this case within the same principle. Cases may be cited where a tenant has been held liable for the rent of a house which has been destroyed by fire; but those cases have no application, as they must be understood to be case where the fire has occurred after the commencement of the tenancy. But suppose that at the time the agreement for letting the house is entered into, the house is in fact burnt down, without the knowledge of either of the parties, the lessor could not compel the lessee to enter on the premises and pay the rent; for in such a case there would be an implied condition that the house was in existence. And there is no distinction between the case where there is no house in existence, and that where the house is not habitable. The case of Sutton v. Temple will be relied upon; but though some of the observations of the Judges may seem in favour of the plaintiff, the decision of the Court merely went upon the ground that the specific object of the party in taking the land could not be considered. The aftermath, which was there the subject of demise, might have been made use of in other ways than by turning cattle on it; as, for instance, cutting the grass and making it into hay, which would not have been affected by the poisonous ingredients which had been placed upon the field. Lord Abinger, C. B., there expressed his entire approval of the decision in Smith v. Marrable, and said, "That was the case of a contract for the letting of a house and furniture at Brighton; … in such a case, the contract is for a house and furniture fit for immediate occupation: and can there be any doubt, that if a party lets a house, and the goods and chattels or the party who is to occupy the house?" But it will be said here, that there is a distinction between a furnished and an unfurnished house; that in the case of a furnished house, there may be an implied condition that it is habitable, and free from bugs; but that in the case of an unfurnished house, there is no such condition. But that cannot be; for the condition cannot be annexed to the personality. The principle, is that wherever a house is let for immediate occupation, that condition is implied. It is alleged that the house was let to the defendant for the purpose of his inhabiting the same, and dwelling therein during the term, - which must mean the whole term. The word "demise" has been held to imply a contract or covenant for quiet enjoyment, and against eviction by title paramount; and an eviction by a nuisance, which renders the premises uninhabitable, ought to rest on the same footing. There is no greater reason for importing into the contract a covenant for quiet enjoyment, than there is for implying a condition that the house is fit for habitation. When a person lets a house for habitation, he impliedly says it is fit for habitation.
But secondly, it will be said that there is a covenant by the defendant "to preserve the messuage and premises in tenantable repair and condition", and that the defendant therefore took upon himself to remove the nuisance, and to render the house habitable. But there is no covenant to put the premises in repair; the covenant is only to preserve or keep in tenantable repair: which imports that the premises were, at the time of the demise, in a tenantable condition. Such a covenant would not impose on the tenant the duty of removing such a nuisance, existing at the time of the demise. In actions for no-repair, the stat of the premises at the time of the demise is a material circumstance to be taken into consideration: Burdett w. Withers (7 Ad. & Ell. 136; 2 Nev. & P. 122). Mantz v. Goring (4 Bing. N. C. 451; 6 Scott, 277; nom. Young v. Mantz). The words "to preserve in tenantable repair" necessarily import that the premises are in tenantable repair at the instant of letting them. The word preserve can only mean that the tenant is to keep the premises in the same condition as they are given to him. In Coe v. Clay (5 Bint. 440; 3. M. & P. 57), it was held that he who lets agrees to give possession. Now, that is a condition which is not expressed, but is implied, because the tenant is to occupy the premises. So here there is an implied warranty that the house is fit for habitation. This case, then, is not distinguishable from Smith v. Marrable; for there is no distinction in this respect between a furnished and unfurnished house. The habitableness of a house is a question of fact for the jury, and here they must be taken to have found that the house was in such a state and condition as to be quite unfit for habitation, and that without any default or omission on the part of the defendant. The plea is, therefore, a good answer to the action. They also referred to the Neale v. Mackenzie (1 M. & W. 747).
C. G. Addison, in support of the rule. The plaintiff is entitled to succeed on several grounds. First, even supposing there be such an implied undertaking on the part of the lessor as that contended for, this plea is no answer to the action. The declaration is founded on a demise of a house and garden ground, into which it alleges that defendant entered, and became and was possessed, until the rent became due; but the plea passes by the demise of the land altogether, and professes to answer the action only in respect of a nuisance to the house; and the plaintiff, upon this ground alone, is entitled to judgment, on the authority of Richard Le Taverner's case (Dyer, 56 (a), pl. 15), where it is said, that "if the sea gain upon part of the land demised, or part be burned with wild fire, the entire effect of the modern cases of Edwards v. Etherington, Collins v. Barrow, and Salisbury v. Marshall (4 C. & P. 65), which were all actions for use and occupation, and not for the rent) are clear to the point, that the rent reserved on a demise issues out of the land, and is payable in every event, and in every state and condition of the demised premises; for although houses be burned by lightning, or accidental fire, or be thrown down by enemies, and although crops be destroyed by inundation or tempest, yet is the tenant liable to pay the rent so long as the land remains to him, the only answer in law to an action of rent to recover it being an eviction by title paramount. Yes; an eviction by the lessor, or any person claiming by lawful title. Besides, the tenant has not pleaded an eviction, but states that he quitted the demised premises of his own accord. In Paradise v. Jane (23 Car. 1) (Sty. 47; Aleyn, 27) the defendant pleaded, that Prince Rupert and an army of aliens entered upon the demised premises, and did drive away the defendant's cattle, and expelled him fro the lands let to him by the plaintiff, and kept him out, so that he could not enjoy the lands during the term; and it was holden that the plea was insufficient, and that the defendant must pay his rent; for where a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract, and the rent is a duty created by the parties upon the reservation. And another reason is added, that as the lessee is to have the advantage of casual profits, so he must run the hazard of casual losses, and not lay the burthen of them on his lessor. So, in the case of Harrison v. Lord North (1 Ch. Ca. 84), where the Parliament, during the civil wars, turned a house into a hospital for sick and maimed soldiers, and so prevented the lessee from having any beneficial occupation thereof for several years, notwithstanding which the lessor brought an action of debt for the rent, no question appears to have been made but that the lesse was bound by law o make good the rent. The lessee consequently brought his bill in equity for relief, on the ground that he had no remedy over against the wrongdoers, because it was an act of force in the Parliament, which had been pardoned by the Act of Obliviour; but it does not appear that he got relief even in equity. So, again, in Carter v. Cummings (cited 1 Ch. Ca. 84) where Carter, being the tenant of a wharf, which was carried away by an extraordinary high tide of the river Thames, filed a bill in equity to be relieved against the lessor's claim for rent, all the relief he had was against the penalty of his bond, which had been broken by the non-payment of the rent, and the lessor was ordered to bring debt only for the rent. In Brooke's Abr. "Dette," fol. 220, pl. 18, it appears that, to an action of debt for rent, the tenant pleaded, that, by the custom of London, the landlord was found to repair and uphold the house sufficiently for habitation; and that before the rent accrued due, the house became so ruinous, by reason of a tempest, that the defendant could not abide in it, and the defendant thereupon requested the landlord to amend the house, and he would not, whereupon the defendant left the house; and it was held, that this was no plea, and constituted no answer in law to the demand for the rent. So where the lessor is bound by covenant to repair, and does not, the lessee cannot avail himself of the landlord's neglect, as an answer to an action of debt for the rent. Bro. Abr. "Dette," pl. 72. In Monk v. Cooper (2 Stra. 763) an action of covenant was brought for non-payment of rent, and the defendant craved oyer of the lease, in which there was a covenant on the part of the lessee to repair, except the premises should be demolished by fire, and then pleaded that the premises were burnt down, and not rebuilt by the plaintiff during the whole term for which the rent was demanded, and that defendant had no enjoyment of the premises; it was held, on demurrer, that the plea was bad; and the Court said, that if the defendant had sustained an injury, he would have his remedy, but could not set it off against the demand for rent. And in Pindar v. Ainsley (cited, 1 T. R. 312), Lord Mansfield observes, that "the consequence of the house being burned down is, that the landlord is not obliged to rebuild, but the tenant is obliged to pay the rent during the whole term." The same point was decided in Belfour v. Weston (1 T. R. 310), where there was a covenant to pay rent, and a covenant to repair, with an express exception of casualties by fire in the latter covenant. In the case of Arden v. Pullen (10 M. & W. 321) the house became uninhabitable, and utterly useless to the tenant, by reason of original defects in the foundations, and it was held that the tenant could not, in consequence thereof, throw up the house, and refuse to pay rent. "The tenant ought," observes Alderson, B., "to examine the house before he takes it." The principle to be deduced form these cases is, that the rent issues out of the land, without reference to the condition of the buildings or structures upon it; and though the buildings may be destroyed or become uninhabitable, the lessee is nevertheless bound to pay his rent. The plea, moreover, in this case, does not shew a permanent and incurable obstruction to the beneficial enjoyment of the demised premises, which could not have been got rid of. Floods and inundations frequently render houses temporarily uninhabitable, but such accidents have never been supposed to constitute an answer to a demand for the rent. Even where lands are permanently covered with water, the lessee is not excused, as appears by Roll's Abr., p. 236, where it is said, in such a case, that, "le soile remaine, et le lessee avera le pisce en le eue." But it may be said that these accidents, rendering the demised premises untenantable and useless, occurred subsequently to the demise, and do not, therefore, conclusively shew that there is no implied condition, on the demise of a house for habitation, that it is a tenantable state at the time of such demise. The plea here alleges that, at the time when the lease was made, and at the time when the defendant entered into and became possessed of the demised premises, the said messuage or tenement was not in a reasonably fit and proper state or condition for habitation. But this averment is perfectly true of every unfurnished house. A house without furniture is not fit for the habitation of a tenant. There cannot, therefore, be any such implied contract or undertaking as that contended for on a demise of a house simply. The landlord lets the mere fabric of the house, without grates or stoves, or any article of furniture, and it is the duty of the tenant to put the house in a habitable condition, unless, indeed he has contracted for a ready-furnished house, in which case, according to Smith v. Marrable, the house is taken under an implied condition that it is properly furnished, and fit for occupation. If the lessor furnishes the house, and by so doing holds it out as fit for immediate occupation, and secures to himself a greatly increased rent in consequence, that is a very different case. As to the arguments drawn from the cases of implied warranties of chattels, those cases rest upon peculiar grounds, and do not apply to the present case. The only warranty known to the law, on demises of realty, is a warranty of the estate of term of years created in the land; there is no warranty as to the particular state or condition of the premises at the time of the demise. "Garranter signifie a defender son tenant en sa siesin:" Britton, fol. 197 b. "Nihil aliud est quam defendere et acquietare tenentem in siesina sua:" Bracton, lib. 5., fol. 480. And so long as the estate created in the land remains, the lessee is bound to pay the rent, whatever may be particular state or condition of the demised premises. There are several cases in the Year Books, where it became a question, whether, if a man made a lease of a house and other tenements, and, at the time of the demise, the house was so ruinous and in decay as to be in danger of falling, the tremor had authority in law to cut down timber to repair it or not. These cases could not have arisen, if the law implied on the demise of the house such a warranty as that contended for. But it is notorious that ruinous and untenantable houses are constantly let to tenants at reduced rents, in order that they themselves may repair them, and re-edify them for their own profit and advantage.
But , even supposing such an implied contract or warranty to exist, the nuisance here complained of forms no answer to the demand for the rent, but must be made the subject of a cross action against the lessor. It is a clear proposition of law, that if the defendant has derived any benefit form the contract, he is bound to fulfil his part of the engagement, and is driven to his cross action in respect of the fault of the other contracting party. Here, then, it appears by the plea, that the defendant entered into and became possessed of the demised premises as in the declaration mentioned, which is a benefit to the defendant: Hunt v. Silk (5 East, 449), Havelock v. Geddes (10 East, 555). But the main point in the present case is, that there is no such implied warranty as that contended for. This is not an action for use and occupation (see 2 H. Bl. 323), as were Edwards v. Etherington, Collins v. Barrow, and Salisbury v. Marshall, but an action of debt on the implied covenant in law, arising out of the reservation of the rent made on the creation of the estate granted in the land; Holder v. Taylor (Hob. 12), Gilb. On Rents, 33, Noke's case (4 Rep. 80 b.), Bacon's Abr., Leases, 633; and so long as that estate remains, the rent is payable, whatever may be the condition of the demised premises.
The judgment of the Court was now delivered by
PARKE, B. This was a case very fully and ably argued a few days ago, upon shewing cause against a rule for judgment non obstante veredicto. The declaration is not for use and occupation, but on an agreement in the nature of a lease. The question is, whether the plea contains substantially a good answer to the plaintiff's claim for a quarter's rent becoming due after the defendant quitted.
On the part of the plaintiff, it was insisted that it did not, for several reasons; the principal one being, that where there is an actual demise of the unfurnished fabric of a specific messuage for a term, there is no contract implied by law on the part of the lessor, that the messuage was at the time of the demise, or should be at the commencement of the term, in an reasonably fit and proper state and condition for habitation (that is, so far as concerned the fabric), though it was demised and let for the purpose of immediate habitation. As we are all of opinion in favour of the plaintiff upon this objection, it is unnecessary to observe upon the others in detail; but it may not be useless to remark, that two of them are very important, and have not been satisfactorily answered; viz., that if such a contract is implied by law, it would be no defence, where the tenant has actually occupied; his remedy would be by a cross action; and to constitute a valid defence on the ground of the breach of this contract, the law must give also a right to abandon the lease upon the breach of it; that is, to make a defence, the law must imply, not merely a contract, but a condition that the lease should be void if the house was unfit for occupation. The cases cited from Brook's Abr. "Dette," 18 and 72, are decisive, that where the lessor is bound by the custom of London, or by covenant, to repair, and does not, the tenant cannot quit. The other objection, which we think right to notice, is, that in this case the house and some garden ground are both demised; and to make the plea good, it must be held, that, if a messuage be taken for habibation, and land for occupation, by the same lease, there is such an implied contract for the fitness of the house for habitation, as that its breach would authorize the tenant to give up both. Whether, if there were such a contract or condition implied by law, generally, it would be implied in this case, where the defendant agrees to preserve in tenantable condition, is a question on which it is quite unnecessary to enter.
The point to be considered, then, is whether the law implies any contract as to the condition of the property demised, where there is lease of a certain ascertained subject, being real property, and that lease is made for a particular object.
The question relates to a case of actual demise of a specific tenement, and we have not to inquire what the obligations of a party would be under an executory agreement, to procure a lease of some house for the habitation of another; nor whether the defendant would not be exonerated on the ground of fraud in the plaintiff, if the plaintiff knew of the defect in the house himself, and that the defendant would not have taken the house if he knew it; nor have we to consider whether the defendant would be responsible, if at the time of the demise there was no house at all –he may be, by reason of the implied contract for title to a house, not the land merely: which imports that the subject of the contract exists. The simple question is, what is the implied obligation on the part of the landlord to his tenant, under a lease of a house for years.
Considering this case without reference to the modern authorities, which are said to be at variance, it is clear that from the word "demise," in a lease under seal, the law implies a covenant, in a lease not under seal, 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 others claiming by title paramount during the term; and the word "let," or any equivalent words, (Shepp. Touch. 272), which constitute a lease, have, no doubt, the same effect, but not more. Shepp. 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 shew 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), Balfour v. Weston (1 T. R. 310), and Ainsely 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 (Alleyn, 26); or where a wharf demised was swept away by the Thames, Carter v. Cummins (cited in 1 Chanc. Ca 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, reasonably fit for habitation or cultivation. The implied contract relates only to the estate, not to the condition of the property.
But the defendant's counsel rely upon some modern decisions in support of the positions which they are to maintain. It is not necessary to refer to the cases on the implied warranty of chattels, further than to say that the rule of the common law, which prevails in general, (Co. Lit. 102 a.), that there is no implied warranty on the sale of specific goods, has had exceptions engrafted upon it, where the goods are ordered from a manufacturer, or tradesman, who impliedly engages to use a proper degree of skill and care in constructing or supplying them. Such are the cases of Brown v. Edgington (2 Man. & Gr. 279; 2 Scott, N. R. 496), Shepherd v. Pybus (3 Man. & Gr. 868; 4 Scott, N. R. 434), and others. These have no bearing on the present case.
But the defendant chiefly rests his case upon the decision of Smith v. Marrable (11 M. & W. 5). My judgment in the at case certainly proceeded upon the authority of two previous decisions, which though they contained a novel doctrine, had not been questioned in Westminster Hall, and had received, to a certain degree, the sanction of the Lord Chief Justice Tindal, in a subsequent case. Those cases were Edwards v. Etherington, before Lord Tenterden, and afterwards the Court of King's Bench (Ry. & M. 268, and 7 D. & R. 117), and Collins v. Barrow (1 M. & Rob. 112); and the last, that before Lord Chief Justice Tindal, was Salisbury v. Marshall (4 Car. & P. 65); and I thought they established the doctrine, not merely that there was an implied contract on the part of the lessor, that the house demised should be habitable, but an implied condition, that the lease should be void if it were not, and the tenant chose to quit. From the full discussion which those cases have now undergone, on the present argument, and that in the recent case of Sutton v. Temple, I feel satisfied they cannot be supported, if the reports of them are correct; and we all concur in Temple, in which this Court decided, that there was no implied warranty of condition of fitness for a particular purpose on a lease of aftermath.
We are under no necessity of deciding in the present case, whether that of Smith v. Marrable be law or not. It is distinguishable from the present case on the ground on which it was put by Lord Abinger, both on the argument of the case itself, but more fully in that of Sutton v. Temple; for it was the case of a demise of a ready-furnished house for a temporary residence at a watering-place. It was not a lease of real estate merely. But that case certainly cannot be supported on the ground on which I rested my judgment.
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.
Judgment for the plaintiff.
Note 1 5 Ed. 4, Longo Quinto, 100 b. fol. 9; 32 Hen. 8, fol. 1; Dyer [Back]
Note 1 5 Ed. 4, Longo Quinto, 100 b. fol. 9; 32 Hen. 8, fol. 1; Dyer [Back]