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fail to see the force of this reasoning. The cesspool was used for the very purpose for which it was constructed, and the tenant had the right to so use it. We cannot measure the extent to which a cesspool may be lawfully used. Its lawful use in this case resulted in a nuisance to the plaintiff; the defendant demised the premises with the cesspool so located that it would naturally produce such a result, and for this result we must hold her to be liable." It thus appears clearly that the liability of the lessor could not be avoided by an argument that the lessee's acts, and not her own, were the proximate causes of the injury. Their combined acts created and continued the nuisance which was the proximate cause of the injury for which either or both were liable in damages. This case is cited with approval in Wunder v. McLean (1890) 134 Pa. 334, 19 Am. St. Rep. 702, 19 Atl. 749, and in Brown v. White (1902) 202 Pa. 297, 58 L.R.A. 321, 51 Atl. 962.

Another clear statement of the principle is found in the opinion in Pickens v. Coal River Boom & Timber Co. (1905) 58 W. Va. 11, 50 S. E. 872, 6 Ann. Cas. 285, where the court said: "If a landlord let premises already a nuisance, he and the lessee are both, or either, liable for the continuance. The landlord cannot shift the liability to other shoulders. And even if the lessee, by some work, add to the nuisance, but not by a separate, independent work, but one used along with the instrument of nuisance let to him, the lessor is still liable, though the injury came from both the work as it was when leased and the additional nuisance coming from the addition made by the lessee. The injury is the common fruit of the two, though lessor and lessee both contributed. How can you divide the injury,-especially in such a case as this? Where the lessee creates, originates an independent, separate work, unauthorized by the lessor; the lessee is liable only. Where it becomes a nuisance only by the lessee's act, and the landlord has not contributed, only the lessee is liable. 21 Am. & Eng. Enc. Law, 2d ed. 721; 1 Jaggard, Torts, 225; 1 Kinkead,

Torts, 99; Leahan v. Cochran, 86 Am.
St. Rep. 516, note."

That the doctrine of liability as tort-
feasors is the basis for the rule is
further supported both by the fact
that in discussing and applying the
rule the courts do not discuss the doc-
trine of proximate cause, and by the
trend of the inquiry in developing the
theory upon which the nuisance cases
are decided. The theory upon which
the landlord is usually held liable,
where the premises are leased with
a nuisance, is that he created the
nuisance and will be presumed to
have intended the continuance there-
of, or that he acquired title with
an existing nuisance upon the prem-
ises and knowingly leased them in
that condition. In either case the
act of leasing with the nuisance is
held to raise the presumption that he
intended the nuisance to be continued.
So the decisions frequently turn upon
the question of what facts and cir-
cumstances will overcome this pre-
sumption. For example, it was held
in Cerchione v. Hunnewell (1913) 215
Mass. 588, 50 L.R.A. (N.S.) 300, 102 N.
E. 908, in harmony with the rule in
the English courts, but contrary to
the weight of American authority, that
the presumption was overcome by the
covenant in the lease that the tenant
should make the repairs (the nuisance
being created by lack of repairs) and
alterations desired, and save the land-
lord harmless from damages, etc.
Thus, it will be seen that in most cases
the question has been one of discov-
ering the intention of the landlord,
rather than the proximate cause of
the injury. Strength is also added to
the point here advanced, by the fact
that no distinction is made between
cases in which the tenant merely neg-
lects to prevent the quiescent nui-
sance from becoming an active one,
and cases like the reported case (LAR-
SON V. CALDER'S PARK Co. ante, 731),
where the positive acts of the tenant
are the immediate cause, if not the
proximate cause, of the injury, pro-
vided that those acts were contem-
plated by the lessor when the lease was
made and possession given.

There are many cases in which the

tenant's positive acts, not merely his neglect to act, in using leased property for the purpose for which it was leased, and in the manner contemplated, turned the property or some part thereof into an active, as distinguished from the quiescent, nuisance, doing injury to a third person, and in which the landlord was held liable, without any reference being made to the doctrine of proximate cause as between the acts of the lessor and those of the lessees, among which are: Grady v. Wolsner (1871) 46 Ala. 381, 7 Am. Rep. 593; Helwig v. Jordan (1876) 53 Ind. 21, 21 Am. Rep. 189; Jackman v. Arlington Mills (1883) 137 Mass. 277; Hudson County v. Woodcliff Land Improv. Co. (1907) 74 N. J. L. 355, 65 Atl. 844; Fish v. Dodge (1847) 4 Denio (N. Y.) 311, 47 Am. Dec. 254; Pickard v. Collins (1856) 23 Barb. (N. Y.) 444, etc.

And the same rule is approved in cases in which the tenant merely omits some duty which would have prevented the quiescent nuisance from becoming active, no question of proximate cause as between the acts of the landlord and those of the tenant being raised. Bailey v. Dunaway (1911) 8 Ga. App. 713, 70 S. E. 141; Beck v. Hanline Bros. (1913) 122 Md. 68, 89 Atl. 377; Maloney v. Hayes (1910) 206 Mass. 1, 28 L.R.A. (N.S.) 200, 91 N. E. 911, 3 N. C. C. A. 137; Marston v. Phipps (1911) 209 Mass. 552, 95 N. E. 954; Isham v. Broderick (1903) 89 Minn. 397, 95 N. W. 224, 14 Am. Neg. Rep. 112, etc.

But in Gardner v. Rhodes (1902) 114 Ga. 929, 57 L.R.A. 749, 41 S. E. 63, there is language used which indicates that the court may have been of the opinion that no recovery could be had from the landlord unless his acts were the proximate cause of the injury, but the decision is based upon the finding that the landlord did not contribute anything to the injury. The court said: "The connection of the landlord with the matter terminates altogether at the point where the ditch is made upon the premises, and as he was in no way responsible for the acts of his tenants in using the ditch at a time when

its use would probably result in the formation of ice upon the sidewalk, and as there is nothing appearing in the record which made it his duty to remove from the sidewalk the obstruction thus caused, it seems to be clear that nothing done by the landlord directly contributed to the injury which the plaintiff sustained. Certainly, under the circumstances, the mere presence of the ditch upon his property was not the proximate cause of the injury." The point might be stated in another way, i. e., the landlord may not have intended the tenant to use the ditch in freezing weather, so that the tenant alone created and maintained the nuisance that caused the injury. The last sentence quoted is dictum that merely weakens the argument that it was written to strengthen.

As an illustration showing the decisive point in the facts on which the liability of the landlord will turn, a comparison between the reported case (LARSON V. CALDER'S PARK Co. ante, 731) and another shooting-gallery case (Leonard v. Hornellsville (1899) 41 App. Div. 106, 58 N. Y. Supp. 266, appeal dismissed in (1901) 166 N. Y. 590, 59 N. E. 1125) will be helpful. The vital distinction between the two cases is that in the New York case the premises could have been used for a shooting gallery (the purpose for which they were leased) in a way that would have caused no nuisance, and there was nothing to indicate the manner of use to the tenant. The tenant bought and put up a target from which bullets would rebound,a steel target,-and placed it in a position where its use was dangerous, the landlord not knowing how the shooting gallery was constructed or operated. It is quite clear that the case did not come within the rule stated above, for there could be no presumption that he intended the tenant to construct a nuisance on the premises. The landlord was held not liable since he contributed nothing to the creation or continuance of the nuisance, but the question of proximate cause was not raised. In the LARSON CASE, the acts of the landlord had in

dicated exactly how he expected the shooting gallery to be used, and the injury was caused by its use in that manner. He was held liable, as stated supra, upon this theory of nuisance. But the court proceeds to inquire further, and actually holds that the landlord's acts were the proximate cause of the injury. The weakness of the argument supporting this finding is quite apparent; and such an argument can never be strong where the entire nuisance was the proximate

cause, since the axiom that the whole
is greater than any of its parts is not
easily refuted. The decision would be
much stronger if the court had held
that, since the entire nuisance was
the proximate cause and the landlord
was presumed to have intended its
continuance, he was liable as a joint
tort-feasor, unless he succeeded in re-
butting the presumption, regardless of
the question of whose acts were the
most vital in causing the injury.
J. W. M.



DAVID J. JOHNSON et al., Appts.

Connecticut Supreme Court of Errors - May 28, 1918.

(92 Conn. 590, 103 Atl. 974.)

Evidence to vary indorsement of note.

1. Parol evidence is not admissible in an action on the note, to show that an unconditional indorsement of a promissory note was intended to be an indorsement without recourse, under the provisions of the Negotiable Instruments Act that, as between the immediate parties to the instrument, the delivery may be shown to be conditional. [See note on this question beginning on page 764.] Contract

Bills and notes - what is.

conditional delivery

2. The indorsement and delivery of a promissory note in satisfaction of an outstanding note of the indorser is not a conditional delivery, within the provision of the Negotiable Instruments Act that, as between the immediate parties, the delivery may be shown to be conditional.

[See 3 R. C. L. 861.]

conditional delivery.

3. The conditional delivery of a written instrument necessarily implies that the delivery may become absolute and the contract obligatory according to its terms, in case the condition precedent is performed or broken, as the case may be.

[See 10 R. C. L. 623.]

APPEAL by defendants from a judgment of the Court of Common Pleas for Fairfield County (Walsh, J.) in favor of plaintiff, in an action brought to recover an amount alleged to be due and unpaid on a note. No error.

Statement by Beach, J.:

The note in suit was for $600 with interest at the rate of 5 per cent, payable in semiannual instalments of $50 each to the order of the defendant David J. Johnson, and contained an agreement that, if any semiannual payment remained unpaid when due, the whole unpaid

principal should become due and payable on demand. The complaint alleged that David J. Johnson indorsed the note to the other defendant, Clara L. Johnson, who indorsed it to the plaintiff; that the semiannual payment due June 1, 1914, was not paid when due, though demanded; that notice thereof was duly

(92 Conn. 590, 103 Atl. 974.)

given to the defendants; and that there is now due the plaintiff on said note $550, with interest. The answer alleges that, at the time the note was indorsed to the plaintiff, the defendants were indebted to the plaintiff on another note on which a balance of $450 was due and payable; that the plaintiff agreed, in consideration for the delivery of the note in suit and other valuable consideration, to accept the note in suit and to look to the security for its payment, and not to hold the defendants liable thereon. In another paragraph it is alleged that the defendants paid $75 in cash and interest and delivered the note in suit to the plaintiff, upon the condition that the plaintiff should accept the same in satisfaction of the former note, and that he would not hold the defendants liable on their indorsements. The reply to this answer was a general denial. At the trial the defendants offered parol evidence of the agreements and conditions alleged in the answer, which was objected to, ruled out, and exceptions taken.

Messrs. John C. Chamberlain and Elbert O. Hull for appellants.


Mr. Thomas M. Cullinan for appel

Beach, J., delivered the opinion of the court:

The Negotiable Instruments Act provides that, as between the immediate parties to the instrument, "the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument." Gen. Stat. § 4186. This was so before the act. McFarland v. Sikes, 54 Conn. 250, 1 Am. St. Rep. 111, 7 Atl. 408; Trumbull v. O'Hara, 71 Conn. 172, 177, 41 Atl. 546. In this case there is no question but what the delivery was for the purpose of transferring the property in the instrument, for the note in suit was given and received in part payment of an outstanding promissory note, which was received

back by the defendants for cancelation; and the answer alleges that the intent of the transaction was to make the note available to the plaintiff at once, as an obligation of the makers. To that extent the delivery was absolute and unconditional.

Was there a conditional delivery of the instrument so Bills and notesfar as the contract conditional deof indorsement was livery-what is. concerned? We think not. The conditional delivery Contractof a written con- conditional delivery. tract necessarily implies that the delivery may become absolute and the contract obligatory, according to its terms, in case the condition precedent is performed or broken, as the case may

Thus, in McFarland v. Sikes, supra, the condition on which the note was delivered to the plaintiff's attorney was that if the defendant failed to appear upon a certain day the note was to become effective as a note, according to its tenor. Here, however, the alleged condition is that the contract of indorsement. though absolute in form, was never to become operative at all; and so it is evident that the defendants are seeking to attach a condition to the contract itself which is not therein expressed, and are not seeking to attach the condition to the delivery of the contract.

Their real defense is that they never contracted as written, and that the indorsements, although absolute in form, were intended by both parties to be indorsements without recourse. Assuming that to be so, it is too well settled for discussion that the contract which the law implies from an unconditional indorsement Evidence-to cannot be varied or vary indorsecontradicted by pa

ment of note.

rol evidence, in defense of an action on the note. Burns & S. Lumber Co. v. Doyle, 71 Conn. 742, 71 Am. St. Rep. 235, 43 Atl. 483. If it is true, as claimed, that the plaintiff is fraudulently attempting to take advantage of a contract which neither

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Bills and notes - limited indorsement.

1. In case a note has been indorsed by the payee for the purpose of being used as collateral, and afterwards, on the payment of the principal debt, the note is returned to the payee, and he sells and transfers the same to another, who afterwards brings suit thereon against the maker and the payee, it is competent to show the facts as to such indorsement, and that, as a part of the contract made and executed at the time of the sale and transfer, the liability of the payee as indorser was, by executed oral contract, limited so as to extend only as to a warranty against equities between the maker of the note and the payee.

[See note on this question beginning on page 764.] Pleading special warranty of note.

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2. A petition which sets forth a special warranty made by the payee of a promissory note at the time of transferring the same, but does not allege a breach or failure of such warranty, does not state a cause of action against the payee.

-representations by payee.

3. An allegation in the petition of plaintiff, in a suit on promissory notes against the maker thereof, in which it is sought also to enforce liability against the payee who transferred such notes, that at the time of the sale and transfer the payee represented to the plaintiff that there was absolutely nothing wrong with the notes, and that there were no defects and infirmities about them, or any equities existing between the payee and the maker, does not state grounds for action against the payee, unless there is a further allegation setting out de

Headnotes 1-5, by STEWART, C.

fects, infirmities, or equities so existing.

[See 3 R. C. L. 1162.]

Bills and notes waiver of notice.

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