Lynch v. Alexander Ortlieb & Co. , 70 Tex. 727 ( 1888 )

Acker, Judge Commission of Appeals.

Appellant J. D. Lynch, owned a two story business house in the city of Dallas, and on the thirtieth day of January, 1880, entered into a written lease for the second story of the building to appellees for a term of two years, beginning February 20, 1880. Appellees paid rent up to April 1, 18804 and went into possession of the leased premises and began business as wholesale dealers in notions. The written contract of lease contains no covenant, or representations, as to the safety or condition of the building.

On April 1, 1880, a portion of the wall of the lower story of the building fell, causing damage to appellees’ goods. This action was brought against the landlord, Lynch, to recover compensation for the damage thus sustained.

On the trial appellees were permitted, over objection of appellant, to testify, that Hardie, agent for Lynch, who made the contract of lease with them, represented to them at the time the lease was executed, that the building was safe and secure. The objection was upon the ground that appellees “sought by the evidence to vary and enlarge the written contract of lease by adding a parol covenant of warranty as to the condition and character of the building.”

The contract having been reduced to writing and executed by the parties, they are presumed to have stated in the writing just what each party undertook to do, and their respective rights and liabilities must be determined from the language of the instrument itself. If the language of the instrument was ambiguous, or uncertain, parol evidence might have been offered for the purpose of explaining what the language used actually meant. The instrument contains no warranty as to the condition or character of the building, and the effect of the evidence was to fix upon appellant the liability arising upon such a warranty, thus changing in a very material manner the rights and liability of the parties. The only covenant contained in the lease is upon the part of appellees, that they would keep the premises in repair.

Opinion adopted May 15, 1888.

There is no implied warranty upon the part of the landlord that the premises are fit for the purposes for which they are leased. If the tenant desired to hold him responsible for the insecurity of the building, they should have had such a covenant incorporated in the lease. There is no allegation of fraudulent representations or concealments ■ upon the part of the landlord, and in the absence of such allegation parol evi= dence can not be offered of any representations or warranties made by him, not embraced in the written contract of lease. It seems, indeed, that such allegation could not consistently be made, for it appears that appellees examined and inspected the building for themselves before the contract of lease was entered into. The lower story of the building was not in the possession of appellant. It was occupied by tenants, and it clearly appears that the insecure condition of the wall was produced by the uses made of the adjoining premises, which were not owned by, nor under the control of appellant.

We think the court erred in overruling the objection and admitting the evidence, from which it follows that the court erred in giving the charge relating to that evidence, and complained of in the fourth assignment of error. (Hughes v. Sandal, 25 Texas, 162; Self v. King, 28 Texas, 552; 4 Wait’s Act. and Def., 235; Taylor’s Landlord and Tenant, sec. 381; Woods’s Landlord and Tenant, secs. 320, 324; Abbott’s Trial Ev„, 526.) We deem it unnecessary to discuss other points presented by the appellant.

For the errors indicated, we are of opinion that the judgment of the court below should be reversed and the cause remanded.

Reversed and remanded.