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terms, gives the right to a jury trial. They were dilapidated, and lease contained no cove. omission referred to above in section 6284 nant by landlord to make repairs, florist and does not occur in section 6283; therefore successor took premises at their own risk, and the chancellors were without power to change there was no implied covenant by landlord that said statute by rule, and the rule in question they were fit for the purposes for which rented,

so that florist could not as against landlord's does conflict with the statute.

demand for rent recoup for damages when bricks The Code provides that the cause shall be fell from the house to the greenhouse. tried by a jury where the demand is made in the pleadings. The rule of the court pro

2 Landlord and tenant 172(3)-Failure to

repair not a constructive eviction, vides, in effect, that notwithstanding this plain mandate of the statute, such jury ises was not a constructive eviction of the les

Failure of landlord to repair leased prem. trial shall not be had unless certain other

sees, where the dilapidated condition of the things are done. In discussing the rule un premises was not the result of any wrongful act der consideration in Harris v. Bogle, supra, of the landlord, who was not under obligation, this court said:

express or implied, to repair. "This we think a reasonable regulation, pre- 3. Landlord and tenant cm 152(2)-Subsequent venting surprise to the adverse party and af promise of landlord to repair void as without fording opportunity to obtain a jury."

consideration.

Where the lessees of a brick house and These reasons are potent in a cause like greenbouse gave notes for the rent, the subsethe one being considered in that case, but quent promise of the landlord's son, as her such reasons would not apply in a cause like agent, to make repairs, was without considerathe present one for the adverse party was tion, and imposed no obligation on the landlord. given notice upon the filing of the answer, 4. Landlord and tenant 192(1)-Threat of and as soon as the cause was at issue, that

condemnation does not affect rights of par. the defendants desired to have the cause ties. heard by a jury, and hence the complainant Since the destruction of leased property by could not be surprised.

municipal action does not relieve the tenant It is likewise apparent that this means of from the obligations of his lease, mere threat demanding a jury is just as effective as ap- of condemnation does not affect the contract pearing in open court, as provided by the rights of the parties. rule, and moving for an order to have the cause heard by a jury, and the opportunity Appeal from Chancery Court, Shelby Counfor summoning the jury is certainly afford-ty; F. H. Heiskell, Chancellor. ed where the demand is made in the plead

Suit by Mrs. L. R. Boyd against A. W. Me ings as much so as where the demand is Carty and another. From decree for defend. made in open court.

ants, complainant appeals. Decree reversed, Counsel for the complainant, in their and decree rendered for complainant. brief, have not presented any reason

J. H. Watson, of Memphis, for appellant. shown any necessity for such a rule as the one we are here considering, and none oc

R. Lee Bartels, of Memphis, for appellees. curs to us. Nor has it been pointed out how such a rule could be upheld without contra GREEN, J. The complainant entered into vening the provisions of the Code.

a contract with Pierson & McCarty Company We are of the opinion, therefore, that the on January 25, 1910, whereby complainant defendant was entitled to have the issues leased to Pierson & McCarty Company for tried by a jury.

a term of ten years from March 9, 1910, cer. As soon as the cause was at issue, a de- | tain property in Memphis described as "the mand for a jury having been made in the two-story brick house and lot on west side pleadings, the clerk should have entered the of Dunlap street, 105 feet fronting on Duncause upon the trial docket.

lap street, and running back to Ragland For the error in declining to submit the avenue, near north gate of Elmwood Ceme. cause to a jury, the cause will be reversed, tery.” This property was rented for greenand remanded for a new trial.

house purposes.

The rent was $3,600, evi. denced by 120 notes for $30 each, payable monthly. In addition to the notes the lessees were to pay certain taxes on the property

during the term. There is no other provi. BOYD V. MCCARTY et al.

sion of the lease material to this inquiry.

Pierson & McCarty Company seems to have (Supreme Court of Tennessee. May 29, 1920.) been a trade-name under which S. G. Hester 1. Landlord and tenant Cw223(6)-Lessees, was doing business as a forist. He conductknowing premises dilapidated, took them ated this business at this place up until the their own risk.

year 1916, when he transferred his lease to Where a florist and his successor, at time defendant McCarty, who continued the same of lease and transfer, knew leased premises kind of business on these premises.

or

(222 S.W.) The rent notes were paid by Hexter and his own risk, and there is no implied coveMcCarty until March, 1917. They have made nant to be ascribed to the landlord that they no payments since. This bill was filed to re- are fit for the purposes for which they are cover the amount of the unpaid notes, and rented. It therefore follows that the landalso certain taxes which it is alleged the lord is not responsible to his tenant under defendants failed to pay according to con- such circumstances for damages occasioned tract.

by the landlord's failure to repair them. The defendants answered and interposed a Principles governing this case have been certain claim for damages by way of recoup- set out by the court in Schmalzried v. White, ment, and the chancellor rendered a decree in 97 Tenn. 36, 36 S. W. 393, 32 L. R. A. 782, defendant's favor, from which the complain- where, speaking of the landlord, the court ant bas appealed.

said: The proof shows that the house on this

“It does not make him an insurer to the tenproperty was in a dilapidated condition when ant. On the contrary, in the ordinary contracts the lease was made. It does not appear, of letting, it does not imply any warranty on however, to have been in such condition as the part of the landlord that the leased premisthat it amounted to a nuisance to anybody es are in a safe and babitable condition, since prior to 1915. At that time the city author- the tenant ordinarily has it in his power to in ities condemned the house as unsafe and spect the premises and so accept them at his

own risk. Buswell on Law of Per. Inj., 82. ordered it to be torn down, but this order

"In Edwards v. N. Y. & H. R. R. R., 98 N. was never enforced.

Y. 245, it is said: 'It is a universal rule, to Defendants' claim for damages arises in which no exception can be found in any case this way: The greater portion of the lot not now regarded as authority, that, upon the deoccupied by the house was covered with mise of real estate, there is no implied wargreenhouses. Defendants allege and intro- ranty that the property is fit for occupation or duce proof tending to show that in March, suitable for the use or purpose for which it is

hired.' 1917, bricks and shingles from the old house

"In Jaffe v. Hartean, 56 N. Y. 398 (s. C., 15 blew down on the greenhouse and broke the A. R. 438), it was held that 'a lessor of buildglass, and the flowers and plants in the ings, in the absence of fraud or any agreement greenhouse were thereby exposed and damag- to that effect, is not liable to the lessee or othed by the cold. This damage in March, 1917, ers lawfully upon the premises for their condiis estimated to have been about $80. In De- tion, or that they are tenantable and may be cember, 1917, the glass on the greenhouse safely and conveniently used for the purposes was again broken in the same way during for which they are apparently intended.' a severe spell of weather, and defendants Kelley, C. B., said that there was no implied

"In Francis v. Cockrell, L. R. 5 Q. B. 501, claimed that the contents of the greenhouse warranty by the lessor that the demised real was damaged to the extent of about $1,300. estate shall be reasonably fit, or fit at all, After the last accident McCarty vacated the for the purpose for which it is let'; and in premises.

Keates v. Cadogan, 10 C. B. 591, the rule is The defendants ceased to pay rent notes stated to be that ‘no action lies by a tenant after the loss in March, 1917, and called up against a landlord on account of the condition on complainant to repair the old house and of the premises leased, in the absence of an exmake it safe. There is a letter in the rec

press warranty or active deceit."

Schmalzried v. White, supra. ord from the son of complainant, who is alleged to have been her agent in response to [2] It is urged that the failure on the part this demand of defendants for repairs, in of the complainant to repair these premises which he agreed that the necessary repairs amounted to a constructive eviction of the would be made. Defendants also testify to defendants. This could not, however, be true other assurances from complainant's son that unless the duty of making repairs rested uphe would have such repairs made.

on the lessor. Under these circumstances the chancellor was of opinion that defendants were entitled become untenantable if such condition is not

"The mere fact, however, that the premises to recoup their damages against the com- the result of any wrongful act of commission plainant's demand for unpaid rent. In this or omission on the part of the landlord cannot we think his bonor was in error.

be the basis of an eviction."

16 R. C. L. p. The lease contract contains no covenant 686. op the part of the landlord to make any re

"Eviction necessarily being the result of an pairs to the premises demised. The defend- intended, willful, wrongful act, it must be a ant Hexter was familiar with the condition willful omission of duty or a commission of a of the property when he leased it, and de- wrongful act where there is no duty not comfendant McCarty was familiar with the con- the landlord toward the tenant, no eviction oc.

plied with, and no wrongful act committed by dition of the property when he took a trans- curs." Barrett v. Boddie, 158 Ill. 479, 42 N. fer of the original lease to himself. There E. 143, 49 Am. St. Rep. 172. was no fraud whatever on the part of the lessor,

[3] It is insisted that the complainant be[1] We think under such circumstances the came legally obligated to make repairs by tenant takes the premises as he finds them at reason of the promise of her son and agent

222 S.W.-34

heretofore referred to. We think, however, , of tearing it down or repairing it, as between this promise was absolutely without consid- landlord and tenant, must be borne by the eration. The agreement of the defendants | former. We do not think these cases are to remain and to pay the rent notes furnish pertinent. It has been expressly decided in no consideration for this promise to repair, this state that the destruction of leased even if the authority of the agent in this property by municipal action does not rerespect be conceded. The lessees were bound | lieve the tenant from the obligations of bis to pay the rent notes anyhow, and the agree- lease. Banks v. White, 33 Tenn. (1 Sneed) ment relied on was nudum pactum. Such is | 613. Mere threat of condemnation, therefore, the weight of authority. Gregor v. Cady, would not affect the contract rights of the 82 Me. 131, 19 Atl. 108, 17 Am. St. Rep. 466; parties. Eblin v. Miller, 78 Ky. 371; Proctor y. Keith, Willcox y. Hines, 100 Tenn. 524, 45 S. W. 12 B. Mon. (Ky.) 252.

781, 66 Am. St. Rep. 761, and Hines v. Will. Defendants rely on Ehinger v. Bahl, 208 cox, 96 Tenn. 148, 33 s. W. 914, 34 L. R. A. Pa, 250, 57 Atl. 572, and Beakes v. Holzman, 824, 832, 54 Am. St. Rep. 823, are obviously 47 Misc. Rep. 384, 94 N. Y. Supp. 33, announc- not relevant. These cases relate to defects ing a contrary rule. We think these cases of which the tenants are ignorant. can be distinguished on their facts. If not, The decree of the chancellor must accordwe regard the authorities first cited as bet- ingly be reversed, and a decree rendered ter reasoned.

here for the complainant. If the parties can [4] Defendants refer us to cases which agree on the amount thereof, such a decree hold that, when the property leased is con- may be prepared and entered. The defenddemned by municipal authorities, the cost ants will pay the costs.

2

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(222 S.W.)

amended his judgment or order, reducing Ex parte COWARD. (No. 3335.) the fine and jail sentence to the limits he

was authorized under the statute to impose (Supreme Court of Texas. June 2, 1920.) and there was placed in the hands of the 1. Injunction 231 Commitment for con- sheriff as a commitment: a certified copy of tempt not disturbed because of irregularity in the amended order before the writ of habeas order, where properly amended.

corpus was issued by this court, we would Though the original verbal order adjudging not direct the relator's discharge because of relator in contempt for violating an injunction the invalidity of these original proceedings. directing imprisonment and fine was bad because

[2] Under the statute the giving of a bond oral and imposing a penalty in excess of that is made a condition precedent to the issuance allowed, yet, where the judge amended his order reducing the fine and jail sentence to authorized of an injunction. This requirement applies limits, the commitment will not be disturbed to divorce suits brought by the wife, notbecause of the invalidity of the original order. withstanding Articles 4638 and 4639. Wright

V. Wright, 3 Tex. 168. The Judge was there2. Injunction w 148(1) - Statutory require-fore without power to grant the injunction ment of bond applies to divorce suit.

Notwithstanding Rev. St. 1911, arts. 4638, without requiring a bond from the plaintiff, 4639, the statute making the giving of a bond and the injunction was accordingly void. a condition precedent to the issuance of an in- Williams v. Huff, Dallam, 554; Diehl v. junction applies to a divorce suit.

Friester, 37 Ohio St. 473; Lawton v. Rich

ardson, 115 Mich. 12, 72 N. W. 988.
Petition by R. A. Coward for writ of habe The injunction being void, the contempt
as corpus. Writ granted, and relator disorders were equally so.
charged.

The relator is discharged.
Leonard Brown and W. H. Russell, both
of San Antonio, for plaintiff..

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PHILLIPS, C. J. The relator as the de- CITY OF FT. WORTH v. CURETON, Atty. fendant in a divorce proceeding was tem

Gen. (No. 3351.) porarily enjoined by the Special District

(Supreme Court of Texas. June 2, 1920.) Judge of one of the District Courts of Bexar County from molesting his wife and inter- !. Municipal corporations Cm958--Amendment fering with her control of certain property.

to Ft. Worth charter, allowing an additional

tax for school purposes, did not decrease For disobeying the injunction he was by the

general taxing power. Special District Judge held in contempt,

The amendment to the Ft. Worth charter, and by verbal order a fine of $500.00 assessed adopted June 17, 1919, pursuant to Corst. against him and a sentence of 60 days in art. 11, § 5, as amended, which allowed addijail imposed. No commitment was issued on tional taxes for general school purposes, etc., this verbal order. The sheriff acted, it ap- did not diminish the city's general taxing power pears, wholly upon the mere oral direction of fixed by the charter at $1.75 per $100, which, the Judge.

however, included the school tax limited to 50 The injunction writ had issued without the cents per $100, and, hence, a bond issue cangiving of any bond by the plaintiff in the not be rejected on the ground that the taxing suit. Apparently, no bond was required of power was so reduced. the plaintiff.

2, Municipal corporations Ow918(1) Under The relator having applied here for a writ

Ft. Worth charter only qualified voters payof habeas corpus following his being ad

ing property taxes may vote at bond elec

tion.
judged in contempt, the Special District
Judge, before action here on the application

Under the referendum provisions of the Ft. and while the District Court was still in Worth charter, only qualified electors paying session, amended his order in the contempt property taxes may yote at an election to isproceeding, entering a written judgment as

sue bonds, and the bond issue cannot be at

tacked on the ground that the electors were of the date of the original order, adjudging restricted to such persons. the relator in contempt and reducing the penalty imposed to a fine of $100.00 and 3 Original petition by the City of Ft. Worth days imprisonment in jail; a certified copy for a writ of mandamus against C. M. Cureof the judgment as amended being duly de- ton, attorney General. Writ granted. livered to the sheriff as a commitment. T. J. Powell, D. W. Odell, and R. M. Row

[1] The Special District Judge had no au- land, all of Ft. Worth, for plaintiff. thority to assess against the relator for dis Hon. C. M. Cureton, Atty. Gen., and W. P. obedience of the injunction any such fine or Dumas, Asst. Atty. Gen., for defendant. impose any such jail sentence, as was originally ordered. Nor did he have any author PHILLIPS, C. J. The Attorney General ity to direct the imprisonment of the relator having refused to approve a bond issue of the by his verbal order. Since, however, he city of Fort Worth in the amount of $1,890,

Con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexas

000-$400,000 of the bonds being for water (on the $100 valuation, the tax voted as prori. works purposes, the City prays for a manda- sion for the payment of the $1,490,000 of the mus to compel his approval of the issue. bonds is a valid tax, since, with other taxes

The bonds and the tax necessary to provide required and currently levied for other genfor their payment, principal and interest, eral charges and indebtedness of the City as were duly voted at an election held April 8, shown by the record, it does not exceed that 1919, for the purpose. The objections to them amount. made by the Attorney General are based upon The proposition advanced by the Attorney his construction of certain provisions in the General is, that the grant by the charter of City's charter. If that construction is errone- a taxing power for general purposes of $1.75 ous, it is conceded that the bonds should have on the $100 valuation was to be inclusive of his approval.

any tax for general school purposes which The charter of the City granted by the Leg- might be thereafter authorized. islature in 1909 gave it the power to levy for This in our opinion is not the true construcgeneral purposes a tax not exceeding $1.75 on tion of the charter provision. It is contrary the $100 valuation, "inclusive of the school to its manifest intention, and opposed to its tax that may be levied by the board of trus literal language, as well. The charter, as all tees of public schools, as provided in this other laws, looked to the future. Its object Act."

was to make definite provision for the general By the other provisions of the charter, the taxation needs of the City, and like provision board of trustees of the Fort Worth Independ for the City's schools and water works. Othent School District, created by the same Act, erwise it would have failed as a charter and was authorized to require of the City a tax been undeserving of the name, in furnishing levy for school purposes of not exceeding 50 no dependable measure of vital powers necescents on the $100 valuation.

sary for the City's subsistence. The taxing Accordingly, the City's maximum tax rate powers for schools and water works, it de for all general purposes under the original fined with exactness. It is not to be supposed charter, was $1.25 on the $100 valuation. that the purpose was to leave the taxing pow.

[1] The charter also authorized a special er for general purposes only vague and indetax for water works purposes of 25 cents on terminate. A chief concern of all city charthe $100 valuation, not to be levied, however, ters is to make, within constitutional limitaexcept upon the approval of “the qualified vot- tions, adequate provision for the public needs ers” of the City at an election ordered accord confided to the care of municipal government. ing to the referendum provisions of the char- Taxing powers granted, if they are to prove ter. Under those provisions governing bond a capable means to that end, must be stable elections, only qualified property tax paying powers. A principal object of such charters voters are entitled to vote; and in the election is to make them so by defining their limits held with respect to these bonds, only such with precision. A taxing power with its limvoters were allowed to vote.

its made variable by the law conferring it The charter was amended, June 17, 1919, at according merely to the possible future auan election held under Amended Section 5 thorization of other unascertained and unof Article 11 of the Constitution, so as to known taxes, and therefore without any asauthorize for general school purposes and for surance as to the extent to which it might be medical inspection in the schools an addition exercised for any given period, is but an al tax of 21 cents and 2 cents on the $100 empty power. Such a power would be vain valuation, respectively, The effect of these because altogether unreliable in there being two amendments was to enlarge the City's no certainty as to its continued existence, and taxing power for all school purposes to the its being impossible for that reason to make extent of 23 cents, affording it a maximum provision for the public necessity in dependrate for such purposes of 73 cents on the $100 ence upon it. valuation.

This charter should be construed, therefore, The principal question in the case is wheth- if its language reasonably admits of it, as er the grant by these amendments of the addi- consistent with an intention to fix the measure tional taxing power for school purposes of 23 of the City's taxing power for general pur. cents on the $100 valuation, has reduced in poses as definitely and certainly as that of the same proportion the City's general taxing any other taxing power granted by the charpower of $1.25 on the $100 valuation as orig- ter. To subserve those purposes was as vital inally conferred by the charter. As to the 2 to the City as the making of proper provicent tax for medical inspection in the schools, sion for its public schools. The public inthe Attorney General does not contend that terest centered in them as well as in the the City's general taxing power has been im- schools, and rested no less upon the continupaired, but we will treat the question as af- ance of the City's power in their regard. fected by the authorization under the amend. Without a proper taxing power exercisable for inents of both the additional 21 cents general their account, the City would have been imschool tax and the 2 cent tax.

potent to perform the essential duties of a If notwithstanding these amendments the municipal government. It was important,

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