Wolfe v. Arrott

Chief Justice Mercur

delivered the opinion of the court,

This suit was by a landlord against his tenant, to recover one month’s rent of a building and premises, let at the annual rental of ?*900.

Judgment having been taken for want of a sufficient affidavit of defence, all the facts therein averred must be considered as true for present purposes. The question then is, do they constitute a defence which should have been submitted to the jury ?

The lease is in writing. It stipulates the lessee shall not use the premises otherwise than as a dwelling house. It therefore fairly represents and declares the house to be in all respects fit and suitable for that purpose.

Tlie rule that fraud in the making of a written agreement may be sliown by parol evidence, to change its legal effect, is too well established to need any citation of authorities to susit. The evidence however must be clear, precise and indubitable. Are tlie facts alleged sufficient, and are they properly averred in the present case, to constitute any defence if true'?

In substance the plaintiff in error avers in bis affidavit that be was not willing to lease the premises unless he was satisfied that the plumbing and drainage were in first-class order ; that he so stated to the lessor, and expressed a determination to send a plumber to examine the same ; but the lessor assured him that tlie well into which the house was drained had been lately dug, that lie had a plumber to thoroughly overhaul everything, and he would guarantee that the sanitary eondition of the house was good, and that tlie drainage and plumbing were as near perfect as they could be, and that anything wrong with either would be remedied by him at once, and in consideration of these assurances and guaranty the lessee signed the lease and moved into the house. He further avers that soon thereafter he discovered the drainage to be defective, that tlie soil-pipe which drained the water-closet in tbo house also drained the water from tbe bath-room and the kitchen, and in fact, all the wastage and nuisance of the house was drained through one small soil-pipe ; that it drained into a covered well which had no ventilation or means of ventilation, and which had not been cleaned, as be was informed, for eight years ; that the soil-pipe was so old and rotten that tlie roots of trees had worked their way through defective joints, and had so filled the pipe for thirty feet as to render it impossible for the contents of the water-closet and kitchen sink to pass through it into the well, but the same flowed back into the sink in the kitchen and stationary wash-basins; the well was filled nearly to the top, and in consequence thereof and of the other causes stated the smell through the house was unbearable; the lessor was notified of these defects and requested to have them remedied, but he refused so to do; that thereupon the lessee employed practical, plumbers to remedy the same, which they did at an expense of $53.84, .which sum he had paid, and he had also^ paid the further sum of $53 for cleaning the well. The plaintiff in error further swears that lie is informed, believes and expects to prove that the premises in question were well known by the lessor and everybody in the neighborhood to have defective drainage, and by reason thereof they had been unoccupied for a long time, all of which facts he believed to be true and expected to be able to prove on the trial of the cause.

Thus the building was let to be occupied as a dwelling house only. If the facts averred be proved on the trial, a jury would be justified in finding it wholly unfit for that purpose. In view of the stench and increasing nuisance caused by its occupation they might perhaps conclude it to be better adapted for a pig-sty than for the habitation of human beings. The rental agreed to be paid was sufficient to reasonably produce a residence exempt from the nuisances stated. It is averred that this defective drainage was well known to the lessor; that when interrogated in regard to it he not only declared he had caused it to be thoroughly overhauled, but the drainage, plumbing and sanitary condition of the house were as perfect as they could be made. If at the time of the execution of the lease the lessor had knowledge of the bad condition of the premises, and not only denied it but falsely represented that the well had been lately dug; that he had had a plumber to put the drainage and plumbing in perfect order, and that the sanitary condition of the house was good, and thereby deterred the lessee from employing a plumber to examine the same, parol evidence of these facts clearly proved should be submitted to the jury, from which they may find intentional fraud on the part of .the defendant in error.

J udgment reversed and a procedendo awarded.