terms, gives the right to a jury trial. The were dilapidated, and lease contained no coveomission referred to above in section 6284 does not occur in section 6283; therefore the chancellors were without power to change said statute by rule, and the rule in question does conflict with the statute. The Code provides that the cause shall be tried by a jury where the demand is made in the pleadings. The rule of the court provides, in effect, that notwithstanding this plain mandate of the statute, such jury nant by landlord to make repairs, florist and successor took premises at their own risk, and there was no implied covenant by landlord that they were fit for the purposes for which rented, so that florist could not as against landlord's demand for rent recoup for damages when bricks fell from the house to the greenhouse. 2. Landlord and tenant 172(3)—Failure to repair not a constructive eviction. ises was not a constructive eviction of the lesFailure of landlord to repair leased premtrial 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, preventing surprise to the adverse party and affording opportunity to obtain a jury.” These reasons are potent in a cause like the one being considered in that case, but such reasons would not apply in a cause like the present one for the adverse party was given notice upon the filing of the answer, and as soon as the cause was at issue, that the defendants desired to have the cause heard by a jury, and hence the complainant could not be surprised. It is likewise apparent that this means of demanding a jury is just as effective as appearing in open court, as provided by the rule, and moving for an order to have the cause heard by a jury, and the opportunity for summoning the jury is certainly afforded where the demand is made in the pleadings as much so as where the demand is made in open court. Counsel for the complainant, in their brief, have not presented any reason or shown any necessity for such a rule as the one we are here considering, and none occurs to us. Nor has it been pointed out how such a rule could be upheld without contravening the provisions of the Code. We are of the opinion, therefore, that the defendant was entitled to have the issues tried by a jury. As soon as the cause was at issue, a demand for a jury having been made in the pleadings, the clerk should have entered the cause upon the trial docket. For the error in declining to submit the cause to a jury, the cause will be reversed, and remanded for a new trial. BOYD V. MCCARTY et al. (Supreme Court of Tennessee. May 29, 1920.) I. Landlord and tenant 223 (6)-Lessees, knowing premises dilapidated, took them at their own risk. Where a florist and his successor, at time of lease and transfer, knew leased premises GREEN, J. The complainant entered into a contract with Pierson & McCarty Company on January 25, 1910, whereby complainant leased to Pierson & McCarty Company for a term of ten years from March 9, 1910, certain property in Memphis described as "the two-story brick house and lot on west side of Dunlap street, 105 feet fronting on Dunlap street, and running back to Ragland avenue, near north gate of Elmwood Cemetery." This property was rented for greenhouse purposes. The rent was $3,600, evidenced 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 provision of the lease material to this inquiry. Pierson & McCarty Company seems to have been a trade-name under which S. G. Hexter was doing business as a florist. He conducted this business at this place up until the year 1916, when he transferred his lease to defendant McCarty, who continued the same kind of business on these premises. (222 S.W.) The rent notes were paid by Hexter and McCarty until March, 1917. They have made no payments since. This bill was filed to recover the amount of the unpaid notes, and also certain taxes which it is alleged the defendants failed to pay according to contract. The defendants answered and interposed a certain claim for damages by way of recoupment, and the chancellor rendered a decree in defendant's favor, from which the complainant bas appealed. The proof shows that the house on this property was in a dilapidated condition when the lease was made. It does not appear, however, to have been in such condition as that it amounted to a nuisance to anybody prior to 1915. At that time the city authorities condemned the house as unsafe and ordered it to be torn down, but this order was never enforced. Defendants' claim for damages arises in this way: The greater portion of the lot not occupied by the house was covered with greenhouses. Defendants allege and introduce proof tending to show that in March, 1917, bricks and shingles from the old house blew down on the greenhouse and broke the glass, and the flowers and plants in the greenhouse were thereby exposed and damaged by the cold. This damage in March, 1917, is estimated to have been about $80. In December, 1917, the glass on the greenhouse was again broken in the same way during a severe spell of weather, and defendants claimed that the contents of the greenhouse was damaged to the extent of about $1,300. After the last accident McCarty vacated the premises. The defendants ceased to pay rent notes after the loss in March, 1917, and called up on complainant to repair the old house and make it safe. There is a letter in the record from the son of complainant, who is alleged to have been her agent in response to this demand of defendants for repairs, in which he agreed that the necessary repairs would be made. Defendants also testify to other assurances from complainant's son that he would have such repairs made. Under these circumstances the chancellor was of opinion that defendants were entitled to recoup their damages against the complainant's demand for unpaid rent. In this we think his honor was in error. The lease contract contains no covenant on the part of the landlord to make any repairs to the premises demised. The defendant Hexter was familiar with the condition of the property when he leased it, and defendant McCarty was familiar with the condition of the property when he took a transfer of the original lease to himself. There was no fraud whatever on the part of the lessor. [1] We think under such circumstances the tenant takes the premises as he finds them at 222 S.W.-34 his own risk, and there is no implied covenant to be ascribed to the landlord that they are fit for the purposes for which they are rented. It therefore follows that the landlord is not responsible to his tenant under such circumstances for damages occasioned by the landlord's failure to repair them. Principles governing this case have been set out by the court in Schmalzried v. White, 97 Tenn. 36, 36 S. W. 393, 32 L. R. A. 782, where, speaking of the landlord, the court said: "It does not make him an insurer to the tenant. On the contrary, in the ordinary contracts of letting, it does not imply any warranty on the part of the landlord that the leased premises are in a safe and habitable condition, since the tenant ordinarily has it in his power to in spect the premises and so accept them at his own risk. Buswell on Law of Per. Inj., 82. "In Edwards v. N. Y. & H. R. R. R., 98 N. Y. 245, it is said: 'It is a universal rule, to which no exception can be found in any case now regarded as authority, that, upon the demise of real estate, there is no implied warranty that the property is fit for occupation or suitable for the use or purpose for which it is hired.' A. R. 438), it was held that 'a lessor of build"In Jaffe v. Hartean, 56 N. Y. 398 (S. C., 15 ings, in the absence of fraud or any agreement to that effect, is not liable to the lessee or others lawfully upon the premises for their condition, or that they are tenantable and may be safely and conveniently used for the purposes for which they are apparently intended.' "In Francis v. Cockrell, L. R. 5 Q. B. 501, Kelley, C. B., said that there was no implied warranty by the lessor that the demised real estate 'shall be reasonably fit, or fit at all, for the purpose for which it is let'; and in Keates v. Cadogan, 10 C. B. 591, the rule is stated to be that 'no action lies by a tenant against a landlord on account of the condition of the premises leased, in the absence of an express warranty or active deceit." Schmalzried v. White, supra. [2] It is urged that the failure on the part of the complainant to repair these premises amounted to a constructive eviction of the defendants. This could not, however, be true unless the duty of making repairs rested up on the lessor. "The mere fact, however, that the premises become untenantable if such condition is not the result of any wrongful act of commission or omission on the part of the landlord cannot be the basis of an eviction." 16 R. C. L. p. 686. "Eviction necessarily being the result of an intended, willful, wrongful act, it must be a willful omission of duty or a commission of a wrongful act where there is no duty not complied with, and no wrongful act committed by the landlord toward the tenant, no eviction oc curs." Barrett v. Boddie, 158 Ill. 479, 42 N. E. 143, 49 Am. St. Rep. 172. [3] It is insisted that the complainant became legally obligated to make repairs by reason of the promise of her son and agent 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 his 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 the weight of authority. Gregor v. Cady, 82 Me. 131, 19 Atl. 108, 17 Am. St. Rep. 466; Eblin v, Miller, 78 Ky. 371; Proctor v. Keith, 12 B. Mon. (Ky.) 252. 613. Mere threat of condemnation, therefore, would not affect the contract rights of the parties. Willcox v. Hines, 100 Tenn. 524, 45 S. W. 781, 66 Am. St. Rep. 761, and Hines v. Willcox, 96 Tenn. 148, 33 S. W. 914, 34 L. R. A. 824, 832, 54 Am. St. Rep. 823, are obviously not relevant. These cases relate to defects of which the tenants are ignorant. Defendants rely on Ehinger v. Bahl, 208 Pa. 250, 57 Atl. 572, and Beakes v. Holzman, 47 Misc. Rep. 384, 94 N. Y. Supp. 33, announcing a contrary rule. We think these cases can be distinguished on their facts. If not, we regard the authorities first cited as bet-ingly be reversed, and a decree rendered ter reasoned. [4] Defendants refer us to cases which hold that, when the property leased is condemned by municipal authorities, the cost The decree of the chancellor must accord here for the complainant. If the parties can agree on the amount thereof, such a decree may be prepared and entered. The defendants will pay the costs. Ex parte COWARD. (Supreme Court of Texas. (222 S.W.) (No. 3335.) June 2, 1920.) 1. Injunction 231 Commitment for contempt not disturbed because of irregularity in order, where properly amended. Though the original verbal order adjudging relator in contempt for violating an injunction directing imprisonment and fine was bad because oral and imposing a penalty in excess of that allowed, yet, where the judge amended his order reducing the fine and jail sentence to authorized limits, the commitment will not be disturbed because of the invalidity of the original order. 2. Injunction 148(1) Statutory requirement of bond applies to divorce suit. Notwithstanding Rev. St. 1911, arts. 4638, 4639, the statute making the giving of a bond a condition precedent to the issuance of an injunction applies to a divorce- suit. Petition by R. A. Coward for writ of habeas corpus. Writ granted, and relator discharged. Leonard Brown and W. H. Russell, both of San Antonio, for plaintiff.. amended his judgment or order, reducing is made a condition precedent to the issuance The relator is discharged. PHILLIPS, C. J. The relator as the de- CITY OF FT. WORTH v. CURETON, Atty. fendant in a divorce proceeding was temporarily enjoined by the Special District Judge of one of the District Courts of Bexar County from molesting his wife and interfering with her control of certain property. For disobeying the injunction he was by the Special District Judge held in contempt, and by verbal order a fine of $500.00 assessed against him and a sentence of 60 days in jail imposed. No commitment was issued on this verbal order. The sheriff acted, it appears, wholly upon the mere oral direction of the Judge. The injunction writ had issued without the giving of any bond by the plaintiff in the suit. Apparently, no bond was required of the plaintiff. The relator having applied here for a writ of habeas corpus following his being adjudged in contempt, the Special District Judge, before action here on the application and while the District Court was still in session, amended his order in the contempt proceeding, entering a written judgment as of the date of the original order, adjudging the relator in contempt and reducing the penalty imposed to a fine of $100.00 and 3 days imprisonment in jail; a certified copy of the judgment as amended being duly delivered to the sheriff as a commitment. Gen. (No. 3351.) (Supreme Court of Texas. June 2, 1920.) Municipal corporations 958-Amendment to Ft. Worth charter, allowing an additional tax for school purposes, did not decrease general taxing power. adopted June 17, 1919, pursuant to Const. The amendment to the Ft. Worth charter, art. 11, § 5, as amended, which allowed additional taxes for general school purposes, etc., did not diminish the city's general taxing power fixed by the charter at $1.75 per $100, which, however, included the school tax limited to 50 cents per $100, and, hence, a bond issue cannot be rejected on the ground that the taxing power was so reduced. 2. Municipal corporations ~918(1) Under Ft. Worth charter only qualified voters paying property taxes may vote at bond election. Under the referendum provisions of the Ft. Worth charter, only qualified electors paying property taxes may vote at an election to istacked on the ground that the electors were sue bonds, and the bond issue cannot be atrestricted to such persons. Original petition by the City of Ft. Worth for a writ of mandamus against C. M. Cureton, Attorney General. Writ granted. T. J. Powell, D. W. Odell, and R. M. Rowland, all of Ft. Worth, for plaintiff. Hon. C. M. Cureton, Atty. Gen., and W. P. Dumas, Asst. Atty. Gen., for defendant. [1] The Special District Judge had no authority to assess against the relator for disobedience of the injunction any such fine or 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, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 000-$400,000 of the bonds being for water works purposes, the City prays for a mandamus to compel his approval of the issue. The bonds and the tax necessary to provide for their payment, principal and interest, were duly voted at an election held April 8, 1919, for the purpose. The objections to them made by the Attorney General are based upon his construction of certain provisions in the City's charter. If that construction is erroneous, it is conceded that the bonds should have his approval. The charter of the City granted by the Legislature in 1909 gave it the power to levy for general purposes a tax not exceeding $1.75 on the $100 valuation, “inclusive of the school tax that may be levied by the board of trustees of public schools, as provided in this Act." By the other provisions of the charter, the board of trustees of the Fort Worth Independent School District, created by the same Act, was authorized to require of the City a tax levy for school purposes of not exceeding 50 cents on the $100 valuation. Accordingly, the City's maximum tax rate for all general purposes under the original charter, was $1.25 on the $100 valuation. on the $100 valuation, the tax voted as provision for the payment of the $1,490,000 of the bonds is a valid tax, since, with other taxes required and currently levied for other general charges and indebtedness of the City as shown by the record, it does not exceed that amount. The proposition advanced by the Attorney General is, that the grant by the charter of a taxing power for general purposes of $1.75 on the $100 valuation was to be inclusive of any tax for general school purposes which might be thereafter authorized. This in our opinion is not the true construction of the charter provision. It is contrary' to its manifest intention, and opposed to its literal language, as well. The charter, as all other laws, looked to the future. Its object was to make definite provision for the general taxation needs of the City, and like provision for the City's schools and water works. Otherwise it would have failed as a charter and been undeserving of the name, in furnishing | no dependable measure of vital powers necessary for the City's subsistence. The taxing powers for schools and water works, it defined with exactness. It is not to be supposed that the purpose was to leave the taxing power for general purposes only vague and indeterminate. A chief concern of all city charters is to make, within constitutional limitations, adequate provision for the public needs confided to the care of municipal government. Taxing powers granted, if they are to prove a capable means to that end, must be stable powers. A principal object of such charters is to make them so by defining their limits with precision. A taxing power with its limits 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 valuation, respectively. The effect of these two amendments was to enlarge the City's taxing power for all school purposes to the extent of 23 cents, affording it a maximum rate for such purposes of 73 cents on the $100 valuation. [1] The charter also authorized a special tax for water works purposes of 25 cents on the $100 valuation, not to be levied, however, except upon the approval of "the qualified voters" of the City at an election ordered according to the referendum provisions of the charter. Under those provisions governing bond elections, only qualified property tax paying voters are entitled to vote; and in the election held with respect to these bonds, only such voters were allowed to vote. empty power. Such a power would be vain because altogether unreliable in there being no certainty as to its continued existence, and its being impossible for that reason to make provision for the public necessity in dependence upon it. 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 purcents 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 ments of both the additional 21 cents general school tax and the 2 cent tax. If notwithstanding these amendments the City still has a general taxing power of $1.25 their account, the City would have been impotent to perform the essential duties of a municipal government. It was important, not only that such a power be conferred, but |