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McGlashan v. Tallmadge.

the premises and their fitness for the purpose for which they were hired. And the evidence would not have justified a finding of a fraudulent concealment of their actual condition at the time of the letting. The referee rests his decision solely upon the ground that the house was not tenantable, and decides as matter of law that for that reason the defendant had the right to abandon the premises, and was not liable for the rent after the time of the surrender of the possession.

The earlier English cases, and especially Smith v. Marrable, (1 Car. & Marsh. 479 ; S. C., 11 M. & W. 5,) seem to support the judgment of the referee. That case was distinguishable from this, in that it was to recover for the use and occupation of a furnished house, and the defense was that the furniture and not the house was unfit for use; and this fact is referred to in subsequent actions as distinguishing it in principle from actions upon leases or for the use and occupation of realty alone. (Hart v. Hindson, 12 M. & W. 68. Sutton v. Temple, Id. 52. Cleves v. Willoughby, 7 Hill, 83.) It is not necessary to refer to the other cases relied upon by the counsel for the respondent, for the reason that they have been expressly overruled in England, and are not regarded as law, in this state. The cases are Cowie v. Goodwin, (9 Car. & P. 378 ;) Edwards v. Ellington, (R. & M. 268, S. C. 7 D. & R. 117 ;) Collins v. Baum, (1 M. & R. 112.) Salisbury v. Marshall (4 Car. & P. 65) was made to depend upon the form of the agreement. The judgment can only be sustained upon the ground that there is an implied warranty by the owner that the demised premises are suitable and proper for the purpose for which they are rented— that a tenement leased for a dwelling is suitable for that purpose.

But the contrary of this is very well settled, by repeated adjudications in England as well as in this state. It is no answer to a demand for rent that the premises are not in a fit and proper state and condition for the purposes for which they are hired—as by reason of the buildings being destroyed by

McGlashan v. Tallmadge.

fire during the tenancy, or becoming untenantable by reason of a nuisance erected and existing without the fault or act of the landlord. (1 Pars. on Cont. 425. Baker v. Holtzapffell, 4 Taunt. 44. Arden v. Pullen, 10 M. & W. 321. Izon v. Gorton, 5 N. C. 501. Gilhooly v. Washington, 4 Comst. 217.) Dyett v. Pendleton, (8 Cowen, 727,) deciding that the grossly lewd and criminal conduct of the landlord in another part of the same dwelling, offensive to common decency and accompanied with riotous disturbances destroying the quiet occupation and beneficial enjoyment of the premises was a virtual eviction, and therefore a bar to an action for the rent, was said in Ogilvie v. Hall (5 Hill, 54) to be an extreme case. It may be sustained upon the ground that the wrongful act of the landlord prevented the beneficial occupation of the premises as a dwelling, and was therefore an eviction. But this carries the doctrine of eviction to its utmost verge. (Per Savage, C. J. in Etheridge v. Osborn, 12 Wend. 529.) Upon a letting of realty, lands or tenements, there is no implied warranty that they are fit for the use for which the lessee requires them. (Arch. Land. and Ten. 284.) The maxim of caveat emptor applies to the contract of hiring of real property, as it does to the transfer of all property, real, personal or mixed, with one or two recognized exceptions which do not reach this case. Sutton v. Temple, (12 M. & W. 52 ;) Hart v. Hindson, (Id. 68 ;) Westlake v. DeGraw, (25 Wend. 669 ;) Cleves v. Willoughby, (7 Hill, 83 ;) Howard v. Doolittle, (3 Duer, 464 ;) Dutton v. Gerrish, (9 Cush. 89 ;) Foster v. Peyer, (Id. 242 ;) and Wells v. Castles, (3 Gray, 323,) are to the point, and decisive.

The referee has not found that the plaintiff was guilty of any fraud, or that the nuisance was created by any wrongful act of the landlord; and as there was no implied warranty that the premises were or should continue to be tenantable, it follows that the defendant was liable upon his contract to pay the rent agreed upon. The action was upon the verbal agreement and not for use and occupation, if that would have

McGlashan v. Tallmadge.

made any difference. The agreement was valid and in force, and the plaintiff was entitled to a judgment for the rent reserved.

The judgment must be reversed, and a new trial granted; costs to abide the event.

Mullin and MORGAN, Justices, concurred.

Bacon, J. (dissenting.) Although it may be true that there is no implied warranty in the case of an actual lease, that the premises are or shall be put in good repair, yet I think it must be held that where premises occupied by a tenant are rendered uninhabitable by reason of a nuisance thereon which endangers health and life itself, the tenant will be warranted in quitting the premises and terminating the demise. Especially should this be so where the landlord has agreed to put the premises in repair, and they are found to be untenantable by the wrongful act or default of the lessor. Such is the principle laid down by Ch. J. Tindal, in Izon v. Gorton, (5 Bing. N. R. 501,) and it applies fairly to this case.

I know no just principle on which a tenant can be held to the performance of an agreement to continue a demise under circumstances which compel him to endure a continued and intolerable nuisance. (See Pendleton v. Dyett, in error, 8 Cowen, 727.) The judgment should, I think, be affirmed.

New trial granted.

[ONONDAGA GENERAL TERM, October 1, 1861. Bacon, Allen, Mullin and Morgan, Justices.)

MERCHANTS' BANK VS. CURTISS.

It is well settled that an accord and satisfaction by one of several obligors or

wrongdoers is a satisfaction as to all; and a partial satisfaction by one of

several wrongdoers is a satisfaction, pro tanto, as to all. In an action against the defendant for fraud in the negotiation of a loan from

the plaintiff to H., upon his bond and mortgage, and for fraudulent representations and concealments relative to the mortgaged premises, it appeared that the negotiation of the loan was conducted by C., an attorney employed by the defendant; that on the discovery of the fraud, C. being charged therewith, executed, together with one T., a bond to the plaintiff, conditioned for the payment of the mortgage debt; that C., subsequently confossed judgment in favor of the plaintiff for the amount then unpaid upon the mortgage debt, and paid a portion of such judgment. Held that if there was any evidence to connect C. with the fraud and to show a guilty complicity on his part, it should have been submitted to the jury, with instructions that if they found the defendant and C. were both engaged in practicing a fraud upon the plaintiff, then the sum paid by C. on his bond, and the judgment recovered thereon, should be allowed to the defendant in

diminution of the damages, to that amount. And that the jury should have been further instructed that if they found the

defendant and C. together practiced the fraud upon the plaintiff, and that upon C.'s being charged with it, he and T. executed their bond to the plaintiff in settlement and satisfaction of the cause of action then existing, the plaintiff was not entitled to recover. Bacon, J. dissented.

PPEAL from a judgment on the verdict of a jury, upon

exceptions taken at the trial, and also from an order made at a special term denying a motion for a new trial.

F. Kernan, for the appellant.

C. B. Sedgwick, for the respondent.

ALLEN, J. The action was for fraud in the negotiation of a loan by the plaintiff to one Alva Hazen, upon his bond and mortgage, and for fraudulent representations and concealments relating to the mortgaged premises, their situation and value. The alleged fraud consisted in palming off upon the plaintiff a mortgage upon two parcels of land of comparatively small value, and inadequate to secure the amount

Merchants' Bank v. Curtiss,

loaned, by inducing the plaintiff to believe that the valuable homestead of the mortgagor was described in the mortgage as a part of the mortgaged premises, and also in misrepresenting the condition and value of the premises actually mortgaged, as well as the location, size and value of the homestead farm proposed to be mortgaged, omitted from the mortgage. The loan was made for the benefit of Hazen, the mortgagee, and the money was appropriated to the payment of his debts, for most of which the defendant was his surety as an indorser of his notes, after others who were primarily liable. The negotiation of the loan was conducted by Stephen Cromwell, an attorney and counsellor of this court. Ho was a witness upon the trial, and testified that he was employed by the defendant to effect the loan. He was paid for his services from the money borrowed. In 1853, about a year after the making of the loan, the plaintiff ascertained that the mortgage did not cover the homestead and was an inadequate security for the mortgage debt, and at once wrote to Cromwell, with whom the business connected with the loan and mortgage had been conducted, and he, together with Artemus Trowbridge, who, with one Potts, (who has since removed from the state,) appraised the mortgaged premises and testified upon oath as to their value, gave to the plaintiff their bond, conditioned for the payment of the mortgage debt. The giving of this bond was concealed from the defendant and not known by him until a few weeks before the trial of this action.

Cromwell, in July, 1857, confessed a judgment in favor of the plaintiff, for the amount then unpaid upon the mortgage debt, and up to the time of the trial had paid thereon over $2300. At the close of the plaintiff's evidence the judge ruled and decided that the bond given by Trowbridge and Cromwell and the judgment thereon against the latter, and payments made by him to the plaintiff, could not and did not affect the amount of damages in this action. At the close of the evidence the judge was requested by the plaintiff's

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