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England and Wales High Court (Exchequer Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Exchequer Court) Decisions >> Smith v. Marrable [1843] EWHC Exch J101 (14 January 1843)
Cite as: 152 ER 693, 11 M & W 5, [1843] EWHC Exch J101

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BAILII Citation Number: [1843] EWHC Exch J101
152 ER 693
11 M. & W. 5


January 14, 1843


    Assumpsit for use and occupation. Plea, non assumpsit. At the trial before Lord Abinger, C. B., at the Middlesex sittings after Michaelmas Term, it appeared that the action was brought to recover a balance of five weeks' rent of a furnished house at Brighton, which had been taken by the defendant of the plaintiff under the following agreement:-

    "Brighton, September 14, 1842. "Mr. John Smith, of 24, St. James's street, agrees to let, and Sir Thomas Marrable agrees to take, the house No. 5, Brunswick-place, at the rent of eight guineas per week, for five or six weeks at the option of the said Sir Thomas Marrable.

    "The rent to commence on the 15th September.
    "T. M.
    "J. S."

    Under this agreement, the defendant and his family entered into possession of the house on Friday the 16th of September. On the following day, Lady Marrable having complained to the plaintiff that the house was infested with bugs, he sent a person in to take means for getting rid of them, which however did not prove successful ; and on the 19th, Lady Marrable wrote the following note to the wife of the plaintiff :-

    "5, Brunswick Place, Sept. 19, 184-2.
    "Lady Marrable informs Mrs. Smith, that it is her determination to leave the house in Brunswick Place as soon as she can take another, paying a week's rent, as all the bedrooms occupied but one are so. infested with bugs that it is impossible to remain."

    On the following Thursday, the 22nd, the defendant accordingly sent the key of the house, together with the amount of a week's rent, to the plaintiff, and removed with his family to another residence. Evidence was given to shew that the house was in fact greatly infested by bugs. The Lord Chief Baron, in summing up, stated to the jury, that in point of law every house must be taken to be let upon the implied condition that there was nothing about it so noxious as to render it uninhabitable; and that if they believed that the defendant left the plaintiff's house on account of the nuisance occasioned by these vermin being so intolerable as to render it impossible that he could live in it with any reasonable comfort, they ought to find a verdict for the defendant. The jury having found for the defendant, Hayward now moved for a new trial, on the ground of misdirection. The alleged nuisance is no answer to this action, founded as it is upon a written agreement of demise for a longer period, but must, if true, be made the subject of a cross action. The rent is not in its nature divisible, and inasmuch as it cannot be said that there has been a total failure of consideration, the payment of a part of it is an admission of the tenancy. In Salisbury v. Marshall (4 Carrington & Payne's Nisi Prius Reports 65), the defendant, who held a house under an agreement "to become tenant by occupying," was held to be entitled to shew, in answer to an action for use and occupation, that the house was not in such a reasonable and decent state of repair as to be fit for comfortable occupation: but Tindal, C. J., there says,

    " I agree with the plaintiff's counsel, that if there had been a separate agreement to do these repairs, then the not having done them would furnish no defence."

    In Granger v. Collins (6 Meeson & Welsby's Exchequer Reports 458), it was held that no duty arises out of the mere relation of landlord and tenant, in the absence of any special agreement., to protect the tenant against eviction by a reversioner.

    But even if this be a defence to the action, it ought to have been pleaded specially. It cannot be denied that this agreement was at one time binding, and therefore the throwing it up for such cause is matter in confession and avoidance. Waddilove v. Barnett (2 Bingham's New Cases, English Common Pleas 538) is an authority in point. There a defendant, in answer to an action for use and occupation, relied upon a payment of rent made to a mortgagee in consequence of notice from him; and it was held that, so far as this defence related to rent which had accrued due previously to the notice, it was not admissible under non assumpsit, but ought to be specially pleaded. Here, in substance, the defence in truth is that there was fraud, express or implied, on the part of the plaintiff, in concealing from the defendant the fact of the existence of this nuisance.

    PARKE, B. This case involves the question whether, in point of law, a person who lets a house must be taken to let it under the implied condition that it is in a state fit for decent and comfortable habitation, and whether he is at liberty to throw it up, when he makes the discovery that it is not so. The case of Edwards v. Etherington (Ryan & Moody's Nisi Prius Reports) appears to me to be an authority very nearly in point. There the defendant, who held a house as tenant from year to year, quitted without notice, on the ground that the walls were in so dilapidated a state that it had become unsafe to reside in it; and Lord Tenterden, at Nisi Prius, held these facts to be an answer to an action by the landlord for use and occupation: telling the jury, that although slight circumstances would not suffice, such serious reasons might exist as would justify a tenant's quitting at any time, and that it was for them to say whether, in the case before them, such serious reasons existed as would exempt the defendant from the plaintiff's demand, on the ground of his having had no beneficial use and occupation of the premises. The jury found for the defendant, and the Court of King's Bench was afterwards moved for a new trial on the ground of misdirection, but they refused to disturb the verdict. There is also another case of Collins v. Barrow (1 Moody & Robinson's Nisi Prius Reports 112), in which Bayley, B., held that a tenant was justified in quitting without notice premises which were noxious and unwholesome for want of proper sewerage. These authorities appear to me fully to warrant the position, that if the demised premises are encumbered with a nuisance of so serious a nature that no person can reasonably be expected to live in them, the tenant is at liberty to throw them up. This is not the case of a contract on the part of the land- lord that the premises were free from this nuisance; it rather rests in an implied condition of law, that he undertakes to let them in a habitable state. With respect to the second point, if the law be as I have stated, and the existence of such a nuisance constitutes a defence to the action, I think it is a defence which is clearly admissible under non assumpsit. This is an action for use and occupation, in answer to which it is competent to the defendant to shew, under the plea of non assumpsit, that there never was any such occupation by him of the premises as to render him liable in point of law. Not only is this a good plea, but it seems to me that it is the only proper plea in such a case, and that a special plea embodying such a defence would be demurrable, as amounting to the general issue.

    ALDERSON, B., and GURNEY, B., concurred.

    LORD ABINGER, C. B. I am glad that authorities have been found to support the view which I took of this case at the trial, but for my own part I think no authorities were wanted, and that the case is one which common sense alone enables us to decide. A man who lets a ready-furnished house surely does so under the implied condition or obligation, call it which you will, that the house is in a fit state to be inhabited. Suppose, instead of the particular nuisance which existed in this case, the tenant discovered the fact, unknown perhaps to the landlord, that lodgers had previously quitted the house in consequence of having ascertained that a person had recently died in it of plague or scarlet fever; would not the law imply that he ought not to be compelled to stay in it? I entertain no doubt whatever on the subject, and think the defendant was fully justified in leaving these premises as he did: indeed, I only wonder that he remained so long, and gave the landlord so much opportunity of remedying the evil.

    Rule refused.

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