Smith v Marrable, Knt
| Jurisdiction | England & Wales |
| Judgment Date | 14 January 1843 |
| Date | 14 January 1843 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 693
EXCH. OF PLEAS.
S. C. 2 Dowl. (N. S.) 810; 2 L. J. Ex. 223; 7 Jur. 70: at Nisi Prius, Car. & M. 479. Distinguished, Sutton v. Temple, 1843, 12 M. & W. 60; Chester v. Powell, 1885, 52 L. T. 722. Considered, Hart v. Windsor, 1843, 12 M. & W. 86. Approved, Wilson v. Finch-Halton, 1877, 2 Ex. D. 336. Explained, Sarson v. Roberts, [1895] 2 Q. B. 395. See also fowler v. Lock, 1872, L. R. 7 C. P. 281; Manchester Bonded Warehouse Company v. Carr, 1880, 5 C. P. D. 511; Robertson v. Amazon Tug and Lighthouse Company, 1881, 7 Q. B. D. 598.
111I.&W.& SMITH '('. MARRABLE 693 smith v. ma.rra.ble, knt. Exch. of Fleas. Jan. 14, 1843.-It is an implied eon-clitiou in the letting of a furnished house, that it shall he reasonably fit for habitation; if it be not (e.g. where it is greatly infested with bugs), the tenant may quit it without notice. [S.;C. 2 Dowl. (N. S.) 810; 12 L. J. Ex. 223; 7 Jur. 70: at Nisi Prius, Car. & M. 479. Distinguished, Sutton v. Temple, 1843, 12 M. & W. 60; Chester v. Fowiill, 1885, 52 L. T. 722. Considered, Hart v. Windsor, 1843, 12 M. & W. SG. Approved, Wilson v. Finch-Hatton, 1877, 2 Ex. D. 336. Explained, Saraw v. Roberts, [1895] 2 Q. B. 395. See also Fowler v. Lock, 1872, L. R. 7 C. P. 281; Manchester ponded Warehouse Company v. CVwr, 1880, 5 C. P. D. 511; llolertsoti v. Amazon Tuff and LighOiause Company, 1881, 7 Q. B. D. 598.J Assumpsit for use and occupation. Plea, non aasumpsit. 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, Uriinswick-place, at the rent of eight guineas per weak, for five or six weeks at the option uf the said Sir Thomas Marrable. "teioma.h markable. "john smith. "The rent to commence on the 15th September. "T. M. "J. S." Under this agreement, the defendant and bis 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 [6] 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, 1842. " 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 greutly infested by hugs. The Lord Chief Baron, in summing up, stated to tihe 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 fiction. 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 C. & P. 05), [7] the defendant, who held a liQuse under an agreement " to becooie tenant by occupying," was hold to be entitled to sjhew, in answer to an action for use and...
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