and in case a business has been established, damages to his business, which may include future profits, unless premises equally suit

6

8

ett, a case very similar to the case at bar, the tenants had no right to interfere with the roof, or control of it. The defendant had such care and control for the benefit of himself and all his tenants, and as said by the court in that case, by implication, he undertook so to exercise his control as to inflict no injury upon his tenants. If the landlord does not exercise common care and prudence in the management and oversight of that portion of the building which belongs to his special supervision and care, and damages are sustained by a tenant on that account, he becomes liable for them."7 As to the portion of the building of which the landlord has the control, he retains all the responsibilities of a general owner to all persons, including the tenants of the building. The authorities on this subject are exhaustively collated in the note to the case of Dollard v. Roberts.9 On examining the cases it will be observed that this liability of the landlord does not exist because of certain expressed or implied covenants contained in the lease, but the action for such liability sounds in tort, not for breach of covenant, and of course not because of implied deceit, because the defects assumed are visible and known to the tenant, but the suit or action would at common law have been, and is still on the principle of that involved in the old action of trespass on the case, and is on the theory that no one will be permitted to so use his own property or to so conduct himself that he will cause injury or damage to another.

In all such eases it is the duty of the tenant to use all reasonable means at his command to prevent injury, and if he sees impending danger it would be his duty to leave the premises, and his remedy is a suit against the landlord for breach of contract, the measure of damages, in such cases, is the difference if any, between the amount of rent agreed to be paid and the value of the use of the premises,

6 67 Me. 545.

7 The following cases are to the same effect: Priest v. Nichols, 116 Mass. 401; Kirby v. Association, 74 Am. Dec. 682; Gray v. Gas Light Co., 19 Am. Rep. 324.

8 Looney v. McLean, 129 Mass. 33; Jones v. Friedenburg, 42 Am. Rep. 86.

9 14 L. R. A. 238.

ant does not vacate the premises when he discovers a defect in the portion under the control of the landlord, which may cause injury to him, the jury should determine whether the danger was so threatening and apparent that the tenant should have foreseen the calamity; whether his conduct in not leaving the premises was that of a prudent person, and if it should be found that he did not act prudently in remaining, after he discovered the danger, he should not be permitted to recover damages from the landlord. The question would not be whether the tenant knew of the defect and thereby assumed the risk. This is said to be the reason why no recovery can be had, in some of the cases.10 But these cases, so far as they hold that the tenant cannot recover because he assumed the risk, are clearly wrong, because there cannot be any question of assumption of risk between landlord and tenant. Assumed risk is connected with and flows from the contract between master and servant, and no such relation exists between landlord and tenant. Furthermore the tenant cannot be said to assume the risk with reference to defects in premises not leased to or controlled by him. The only question by which the tenant's right to recover damages must be tested is: Whether he was guilty of contributory negligence in not moving out when he discovered the danger.

In such cases it would be error to also submit to the jury, the question, whether or not the landlord, although knowing the defect, could reasonably be supposed to have foreseen the danger, because he would be liable for injuries resulting from defects in the premises controlled by him independent of any knowledge of such defects. He would not be liable strictly speaking, in his capacity as landlord, but as the owner of dangerous agencies, and the fact that he may not have known of or anticipated the dangers is no defense, for it certainly is immaterial if damages result from a trespass or wrong whether the wrongful act was committed intentionally

10 Cleves v. Willoughby, 7 Hill, 83; West Lake v. DeGraw, 25 Wend. 669; Jaffe v. Harteau, 56 N. Y. 398.

or unintentionally, as long as the wrong is done to another's person or property, who was not at fault. The only question is: Was a wrongful act done or permitted? Did injury result? Was the act committed by the landlord or his agencies, and could it have been avoided by the exercise of proper care? All this is entirely independent of the lease or the covenants contained in it, and even if the lease contained an express warranty against injuries, the suit would yet not be upon the warranty, but would sound in tort, and the basis of the cause of action would be the breach of a duty, and not a breach of warranty. In case the entire premises are let which are defective in construction or otherwise, which fact is known or by the exercise of reasonable diligence could have been known to the landlord, and which is not known to or by the exercise of ordinary care could not have been discovered by the tenant, and if injury results to the tenant or to a member of his family, by reason and because of such latent or hidden defects the landlord is liable therefor. Upon this proposition, however, there is serious dispute and conflict. There is a general doctrine that as between landlord and tenant the maxim "caveat emptor applies, and the lessee takes the risk of conditions unless he protects himself by express covenants; that the tenant takes the premises for better or for worse, and cannot complain that they were not constructed differently."11

It may be 'rue that in a measure the maxim caveat emptor applies between landlord and tenant, but I do not see why it should apply any more between landlord and tenant than between vendor and vendee. If a lease is in the nature of a sale or conveyance of an estate less than a freehold, why should the law say caution lessee or buyer any more in the one case than in the other, and it does not do it. There are no implied covenants in a lease as to the quality or condition of the premises. Neither are there such covenants in a contract of sale of the entire estate. If premises are let for a special and limited purpose, and if this purpose is defined at the time they are taken or let, so that the act of letting them amounts to an implied warranty that they are fit for that purpose, the trans

11 McAdam on Landlord and Tenant, Vol. 2, Sec. 385, citing a great many cases.

In a

action is rather a license than a lease. lease the purpose for which the premises are desired is not necessarily defined, for the tenant has the right to use the premises for any lawful purpose, and consequently, in contemplation of law there cannot be any implied warranties with reference to the usefulness of the premises for a particular purpose, because the lease does not attempt to define or limit the use to which the premises are to be put. The office of the lease is to convey a portion of the estate, nothing more.

There certainly are some implied warranties in a lease, for instance, the lessor warrants the peaceful possession of the demised premises, in like manner as he does in a deed of conveyance, even without express covenants. This would not not be so if the maxim of caveat emptor applied in all its rigor. That maxim applies in conveyances by quit claim deeds, for by such deed the grantor does not profess to convey any portion of the estate. He says I convey my right, title and interest whatever that may be, but he does not say by such deed that he has any right title or interest, and the deed does not purport to convey any. For that reason a grantee in such a deed is chargeable with notice of secret equities. The law says: Caveat emptor. The same is true of judicial conveyances, but as said before, there is no reason why this doctrine should apply between lessor and lessee.

12 the Su

In the case of Hines v. Wilcox, preme Court of Tennessee lays down the rule that the landlord is liable for damages resulting from hidden defects, which are known or by the exercise of reasonable care could have been known to the landlord, and which are not known or could not with reasonable care, have been discovered by the tenant. In this decision the judgment of the trial court is reversed. The case was again tried upon the theory outlined by the opinion of the supreme court, resulting in a verdict for the plaintiff, and the same judge who wrote the first opinion, wrote the opinion of the supreme court on the second appeal. The second decision is reported in volume 41 L. R. A. p. 278. This reaffirms the former decision in this and

a companion case. This decision stirred up a veritable hornet's nest of criticism and op

12 96 Tenn. 148, 34 L. R. A. 824, 42 Cent. L. J. 411.

position. At the beginning of a lengthy note in 34 L. R. A. 824, the annotator says this:

"Hines v. Wilcox is a new departure in the law of landlord and tenant. It places a duty upon the landlord which it has not been the rule to put there, and to a large extent relieves the tenant from a duty which has always rested upon him. It makes a general rule of an exception which has only been applied in a peculiar class of cases, which does not include so obvious a defect as existed in Hines v. Wilcox. No active care and diligence to discover defects have generally been placed on the landlord. The general rule is that the tenant must beware. He must examine the premises before taking them, and rely upon his own examination unless he procures a warranty from the landlord of the safety of the premises. The burden of the examination is placed on him and not on the landlord."

If this is the general rule I fail to see any reason for it. But the statements made by the learned annotator are well supported by the cases which he collates in the note. I undertake to say, however, upon the authority of the decision in the case of Hines v. Wilcox, and the cases which it follows, and which follow it, which, by the way, are not commented upon by the annotator, to any great extent, that these numerous decisions which are cited in the note referred to are not law, in so far as they conflict with that of Hines v. Wilcox. These cases nearly all deny the right to recover damages for the reason that there are no implied warranties in the lease. The law is, and the decision in Hines v. Wilcox declares that the right to damages does not depend upon covenants expressed or implied in the lease, but that the action is in tort for deceit; that it is the landlord's duty to disclose to the tenant the existence of known and hidden dangers if he knows that they exist, and if he does not know of them, that it is his duty to make reasonable and seasonable inspection of the premises in order to discover hidden defects and dangers. The purpose of the law is that accidents or injuries to persons or property shall be prevented if possible, and in the very nature of things the landlord has a better right and opportunity to inspect the premises from time to time, than an intending lessee. The object is that the lessee shall be warned so that

he may guard against injury, and the landlord must give this warning if he knows of existing dangers, which are not visible to the tenant. And his duty does not end here. It is likewise his duty to inform himself as to the condition of the premises, and if he fails in this he cannot escape liability for injuries resulting from defects and dangers which could have been discovered had he been more vigilant. If ignorence would be a protection, then the more negligent the landlord, the greater his chance to escape liability. In most cases the landlord, who has himself erected the structure in which the defect exists, is perfectly familiar with the weak places in it, and he cannot even claim to be ignorant.

The principal mistake which is made in many cases is that they look to the lease for a basis of a cause of action against the landlord, and here is where the cause for the conflict lies. As said in the opinion in Wilcox v. Hines: 18 "The ground of liability on the part of the landlord when he demises dangerous property, has nothing special to do with the relation of landlord and tenant. It is the ordinary case of liability for personal misfeasance which runs through all the relations of individuals to each other. This liability does not rest upon the theory of an express contract between the owner and the person receiving the injuries, but is predicated upon the obligation which the law imposes on all to so keep and use their property that others using or entering upon it by their invitation, shall not be injured by its improper condition or unfitness. Quoting from Cowen v. Sunderland: 14 "There is an exception to the general rule of caveat emptor, as between lessor and lessee arising from the duty which the lessor owes to the lessee. This duty does not originate directly from the contract, but from the relation of the parties and is imposed by law. It is not upon the ground of an insurer or warrantor of condition under his lease contract, but on the ground of the obligation implied by law, not to expose the tenant or public to danger, which he knows or in good faith should know, and which the tenant does not know and cannot ascertain by the exercise of reasonable care and dili

13 100 Tenn. 538, 66 Am. St. Rep. 770, 41 L. R. A· 281. 14 145 Mass. 363.

gence." In Kern v. Myll,15 it is said in an action between tenant and landlord: "The cause of action does not rest upon any covenant express or implied, of the landlord to repair the premises, nor that they were habitable at the time the lease was made; nor does it rest necessarily upon the relation of landlord and tenant. * * * But the cause of action is based upon the maxim that every person must so use his own premises as not to injure others either in person or property. The declaration showed a nuisance when the premises were leased known to defendant and concealed from plaintiff."

It will be noticed that this much referred to case of Hines v. Wilcox does not place the entire responsibility upon the landlord. It lays down the rule that both tenant and landlord must exercise reasonable care to discover the condition of the premises, and it may be suggested that the care required from the tenant will off-set, neutralize and counterbalance the care exacted from the landlord, and that, therefore, logically there could be. no liability, but the question whether the defects could have been discovered by the exercise of reasonable diligence, by either landlord or tenant, depends upon the degree or amount of opportunity had by either to discover them, and the greater degree of care is exacted from him who had the greater means to discover the defects. This matter is also referred to in the Wilcox case.

The case of Wilcox v. Hines was followed in Thum Bros. v. Rhodes, 16 holding landlord liable for damages from defects unknown to the tenant without equal means of knowledge. Also in Moore v. Parker, 17 holding landlord liable for failure to inform the tenant of known defective condition. This was all that was necessary under the facts in the case.

The case of O'Malley v. Twenty-five Associates, 18 disapproves the Hines-Wilcox case. This holds landlord liable only for failure to disclose actually known hidden defects. This is especially striking because most of the authorities cited in the Hines-Wilcox case are Massachusetts cases. The case is also disapproved in Franklin v. Tracy, 19 holding landlord not liable for injuries to lessee's prop

15 80 Mich. 530.

16 55 Pac. Rep. 264 (Colo.)

17 64 Pac. Rep. 975 (Kan.), 53 Cent. L. J. 246. 18 178 Mass. 559.

19 77 S. W. Rep. 1113 (Ky.).

erty from latent defect in premises, of which he had no actual knowledge.

This bears out what I said at the outset : that there existed certain conflict. Whether I have succeeded as well in demonstrating that it ought not to exist, as I said I would try to do, is of course not for me to say, but I am personally firmly convinced that many courts have gone off on the wrong chute in following the implied warranty theory, and when that would not work out they have erroneously failed to see the true rule of liability, which exists independent of lease, covenant, or warranty. 20 Wichita, Kan.

M. C. FREERKS.

20 For a full discussion of the important distinction sought to be made in the common-law liability of landlords, by the case of Wilcox v. Hines, see the full and exhaustive annotation of the case of Peerless Mfg. Co. v. Bagley, 52 Cent. L. J. 387. See also 53 Cent. L. J. 246. In both these annotations the editor supports the decision in the case of Wilcox v. Hines against the otherwise severe criticism of law journals and annotators.

STATUTES-CONSTRUCTION - INCONSISTENT

PROVISIONS.

STATE V. BATES.

Supreme Court of Minnesota, October 27, 1905. Where the first section of a statute conforms to the obvious policy and intent of the legislature, it is not rendered inoperative by inconsistent provisions in a later section which do not conform to this policy and intent. In such case the later provision is nugatory and will be disregarded.

ELLIOTT, J.: The relator was charged with soliciting parties to purchase intoxicating liquors. in quantities of less than five gallons in violation of the provisions of chapter 346, p. 626, Gen. Laws 1905. He was arrested and brought before the municipal court of the city of Duluth, and after hearing was held to await the action of the grand jury, and in default of bail was committed to the custody of the sheriff. Thereafter he caused a writ of habeas corpus to issue out of the district court, and after a bearing thereon an order was entered refusing to release the petitioner and remanding him to the custody of the sheriff. From this order an appeal was taken to this court under the provisions of chapter 227, p. 296, Laws of 1895.

We are not embarrassed by any controversy about the facts. It is admitted that the relator was legally convicted in the municipal court, and the writ of habeas corpus properly discharged, if chapter 346, p. 626, Laws 1905, is constitutional and effective. This is the only question pre

sented by the record. It is contended by the appellant that the statute is invalid, for the reason (1) that its several parts are so inconsistent and contradictory that the legislative intention cannot be ascertained, and (2) that it violates section 1, art. 3, of the constitution of the state. The statute is entitled as "An act prohibiting the sale of intoxicating liquors, and for the granting of license for the sale of spirituous and vinous liquors, and providing for a penalty for the violation thereof." Section 1 provides "That whoever on his own behalf or as an agent for others, without having a license so to do as provided for in this act, shall solicit any person or persons, firm or corporation or association not having a license to keep a dram shop or saloon under the laws of this state or to a licensed physician or druggist to buy or contract for the future delivery or to make order for any spirituous or vinous liquors in any less quantity than five (5) gallons or either on his own behalf or as said agent or as an agent for the purchaser make an order contracting for the future delivery of any such liquors to any said person, persons, firm, corporation or association shall be subject to a fine,' etc. Section 2 provides that "the board of county commissioners may grant license to persons to act on their own behalf or as agents for others in the sale of spirituous or vinous liquors for future delivery in quantities not less than five (5) gallons to others than those duly licensed to keep a dram shop or saloon under the laws of the state in their respective counties as they think for the publie good requires."

To say that the act is drawn with reasonable skill and accuracy would be to use the language of flattery. It is crude in construction and awkward in phraseology, and it is doubtful whether so brief a legislative enactment ever contained more bad grammar or a greater number of verbal inaccuracies. But such defects are not necessarily fatal to the statute, so long as the court, according to the well-known rules of construction, is able to discover the intention of the legis lature. "Neither bad grammar nor bad English will vitiate a statute, if the meaning of the legislature can be clearly discovered. Awkward, slovenly, or ungrammatical phrases and sentences may yet convey a definite meaning, and, if they do, the courts must accept it as the meaning of the lawmakers." Black, Const. Law, § 34; Kelley's Heirs v. McGuire, 15 Ark. 555; Murray v. State, 20 Tex. App. 620, 2 S. W. Rep. 757, 57 Am. Rep. 623; Lane v. Schomp, 20 N. J. Fq. 82. The statute must be given the benefit of every reasonable inference. “An interpretation which renders a statute null and ineffective cannot be admitted. It is an absurdity to suppose that after it is reduced to terms it means nothing. It ought to be interpreted in such a manner as that it may have effect, and not be found vain and nugatory." Vattel, Interp. of Treaties (Law of Nations, p. 253); State v. C., M. & St. P. Ry. Co., 38 Minn. 281-293, 37 N. W. Rep. 782; State v.

Board of County Comrs. Polk Co., ST Minn. 325334, 92 N. W. Rep. 216, 60 L. R. A. 161. In order to render this statute consistent and intelligible, it is only necessary to omit the word "not" from the clause "quantities not less than five gallons" in the second section. There is no doubt of the power and right of courts to thus omit a word, when necessary to render a statute intelligible which as it stands is devoid of sensible meaning. The books are full of cases in which words have been omitted, supplied, or transposed. Moody v. Stephenson, 1 Minn. 401 (Gil. 289); Woodruff v. Town of Glendale, 26 Minn. 78, 1 N. W. Rep. 581; Donohue v. Ladd, 31 Minn. 244, 17 N. W. Rep. 381; McGee v. Board of Co. Comrs., 84 Minn. 481, 88 N. W. Rep. 6; Chapman v. State, 16 Tex. App. 76; Hutchings v. Commercial Bank, 91 Va. 68, 20 S. E. Rep. 950; Bird v. Board, 95 Ky. 195, 24 S. W. Rep. 118; Paxson v. Farmers, 45 Neb. 884, 64 N. W. Rep. 343. 29 L. R. A. 853, 50 Am. St. Rep. 585; Lancaster County v. Frey, 128 Pa. 593, 18 Atl. Rep. 478; Lancaster County v. City of Lancaster, 160 Pa. 411, 28 Atl. Rep. 854; Black, Int. Law, § 37.

But it is contended by counsel that there is no more reason why the court should by construction omit the word "not" from the clause in the second section than supply it in the first section, which would make the section consistent and the statute valid, but render it entirely inapplicable as far as the defendant in this case is concerned. The rule that the part of the act which is later in position in the statute is to be deemed a later expression of the legislative will, and thus repeal a contradictory earlier provision, is usually, although not universally, accepted, but does not rest upon a very satisfactory foundation. It bas been criticised by Bishop upon the very substantial ground that, as all the provisions of an act are adopted at the same time, there can be no priority in point of time on account of their relative position. Bishop, Written Law, §§ 62-65. If any inference is to be drawn from mere position, it would seem but reasonable to give the preference to what appears first in order. The draftsman would ordinarily express the dominant idea in his mind in the opening paragraph or section, and what follows would naturally and logically agree with what precedes. "For it is to be presumed," says Vattel, "that the authors of an act had a uniform and steady train of thinking." But it is not necessary to invoke such a presumption in the present instance, as the rule of construction which presumes that what appears last in the act is the latest expression of the leg. islative will should not be applied where the provision standing first in the act is more in harmony with the other statutes in pari materia. This exception to the rule was applied by this court in McCormick v. Village of West Duluth, 47 Minn. 272, 50 N. W. Rep. 128. The statute there under consideration contained independent provisions in respect to the character of certain improvement bonds which were authorized