McCoull v. Herzberg
Neil McCoull v. S. Herzberg
Headnotes
Summary
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Opinion of the Court
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Garnett, J. McCoull leased certain premises to Herzberg for a dwelling, the term beginning September 10, 1885, and ending April 30, 1887. The tenant took possession the first day of the term, and occupied the premises until a few days after the 1st day of January, 1886. In ¡November, 1885, an offensive smell was discovered in the house, which continued to appear at intervals, until Herzberg felt obliged to vacate the premises on that account, and he did remove therefrom in the following January. He paid the rent to January 1,18S6, but refused to pay any rent accruing thereafter.
The action below was for the installments of rent, falling due for January, February and March, 1886. The sole defense interposed was the offensive smell, which was alleged to have made it necessary for the defendant to leave the house. It is conceded that the smell came from the sewer in the demised premises. ¡Neither "artifice, contrivance nor fraudulent representation is charged against the plaintiff. He acted in entire good faith, having had the premises, including the sewer, thoroughly overhauled and repaired just before the letting to defendant, and had no reason to believe that any defect existed, which would interfere with the health or comfort of any occupant of the building. The landlord in such case is not an insurer, unless the lease by its terms makes him such. There is nothing in the lease to the defendant which affects the question here made. It is the settled doctrine that there is no implied contract on the part of the landlord that the demised premises are tenantable, or that they will continue so during the term. Blake v. Ranous, 25 Ill. App. 486 . Nor is the landlord bound to repair unless he has expressly agreed to do so in the lease or contract of hiring. The defendant might have protected himself against the consequences now in sight, by agreement with the plaintiff, but the court can not make such an agreement for the parties. [Opinion filed March 24, 1890.] The judgment is in conflict with the views here expressed, and for that reason is reversed and the cause remanded.
Reversed and remanded.
On Rehearing
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Upon Petition for Rehearing. Gabnett, J. The doctrine of this court is that an action at law to recover rent covenanted to be paid by lease under seal, can not be met by the defense that the lessee was induced to execute the lease by fraudulent representations as to the character or surroundings of the premises. They merely relate to the nature of the consideration which the lessee is to receive.
The question was decided in Johnson v. Wilson, opinion filed in this court, December 2, 1839, after mature consideration, and the rule was afterward affirmed in Little v. Dyer, at the same term. As the judgment in this case contravenes that rule, it must be reversed and the cause remanded. .
Reversed and remanded.
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