"Is it an exercise of the police powers of the state to say that, when the horses eat the grass upon the public domain, it has no value, and the resident cannot recover the value thereof, while, if sheep eat it, it has a value, and the resident can recover the value of the same? Undoubtedly, residents can and should recover for trespasses upon their individual lands, but here is a statute which gives damages because of the eating of the grass upon the public domain, provided the eating is by sheep. Is this a police regulation, or an attempt to fence off by statute a certain portion of the public domain for the convenience of cattlemen, horsemen, or ranchers, or any one except owners of certain kinds of herds?

The opinion of the majority of the court is to the effect that not only may you prohibit sheep from grazing within two miles of a residence, but the resident is entitled to the value of the grass which may be destroyed or eaten by sheep within two miles of a residence, although this grass be growing upon public domain. It is certainly clear to the unprejudiced mind that this grass does not belong to the resident, or to any other stock men. They have no property interest in it whatever. Yet here is a statute by which they may sue and recover the value of that which does not belong to them and in which they have no interest. It belongs to the government, which, by license, all are permitted to enjoy; yet this statute, as now construed, permits parties to recover the value thereof (the grass), although it is not his, and never was, and permits him to recover it, not from any one who may take it, but from the sheep men alone. Any other individual may graze it off, cut it off, burn it off, and the resident cannot complain; but, if a sheep owner takes it, it immediately has a value to the resident, and he is entitled to recover the full price thereof. I do not think that this is in any sense a police regulation, or equal protection under the law. It is the most vicious form of class legislation, and it will not do to call such apparent violation of the fundamental rules of right a legitimate exercise of the police power of the state. Classifications, when made, must be based upon some rule of substantial difference which of itself naturally makes the distinction."

RAILROADS-LIABILITY FOR FURNISHING DEFECTIVE CAR TO CONNECTING LINE.-The Supreme Court of Kansas has overruled itself on a very interesting point of law,-the liability of a railroad in furnishing a defective car to a connecting line. In its first decision it held the railroad so liable. Railway Co. v. Merrill, 61 Kan. 671, 60 Pac. Rep. 819. On a subsequent hearing this view was overruled. Missouri, K. & T. Ry. Co. v. Merrill, 70 Pac. Rep. 358. In this decision the court holds the law to be that a railway company, which delivers a defective freight car to a connecting line, is not liable in damages to an employee of the latter, who is injured by reason of such defects, after the car has been inspected by the company receiving it.

* *

*

In the first decision it was held to be within the contemplation of the first carrier that the car would be delivered to another for transportation and it was also known that connecting carriers employ switchmen to handle such cars. "With this knowledge," the court said, "it was the duty of both plaintiffs in error to provide a car which would be reasonably safe for the service to be performed and for employees of connecting lines to handle, to the end that freight might be expeditiously carried to its destination. Negligence on the part of the Chicago Great Western Railway Company will not excuse the plaintiffs in error either for their failure to inspect, or, having inspected the car, permitting it to be delivered to a connecting line in a condition which might be dangerous to switchmen and other employees engaged in the practical part of the business of railway transportation." In the second opinion the court makes the following frank admission: "We are now fully convinced that the doctrine announced in the former decision on the subject in hand runs counter to an unbroken current of authorities, and fails to stand the test of reason."

That the question in this case is one of great importance cannot be denied and the authorities show that the courts themselves find it, under some circumstances, very difficult of solution. The question may first be looked at as a question of negligence. It is a well known principle of negligence that there must be a chain of casual connection between the act of negligence and the injury. Thus, where defendant illegally sold gunpowder to a child, but the child gave all the powder to its parents, who afterward gave part of it to the child, the defendant was held not liable because the act of the parents destroyed the casual connection between defendant's original negligence and the final injury. This same principle is applicable to the question before us. There being a positive duty resting on the receiving railway company to inspect the car turned over to it for transportation by another company, to the end that its employees may not be injured by defects existing before its receipt, the omission or negligent discharge of such duty breaks the causal connection between the negligence of the company tendering the defective car and the plaintiff's injury. In such cases the failure to inspect, or the negligent manner of doing it, is the proximate cause of the injury to the ployee, and the negligence of the company turning over the unsafe car is the remote The failure to discharge the obligation to inspect interposes an independent agency, which severs the casual connection between the company first guilty of negligence and the hurt. It was so held in Fowles v. Briggs, 116 Mich. 425, 74 N. W. Rep. 1046, 40 L. R. A. 528, 72 Am. St. Rep. 537, a case very similar to this. See, also, Lellis v. Railroad Co., 124 Mich. 37, 82 N. W Rep. 828. The duty of a railway company to inspect cars of other roads received by it is enjoined

cause.

em

by law. Railway Co. v. Barber, 44 Kan. 612, 24 Pac. Rep. 969; Railroad Co. v. Penfold, 57 Kan. 148, 45 Pac. Rep. 574; Railroad Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. Rep. 777, 42 L. Ed. 1188. Other cases opposed to the decision in the principal case will be found to be cases where by special contract the duty of inspecting the cars was on the forwarding carrier or else by the agreement between them they were virtually partners in their connecting arrangements. Such were the cases of Moon v. Railroad Co., 46 Minn. 106, 48 N. W. Rep. 679, 24 Am. St. Rep. 194; Railroad Co. v. Snyder, 55 Ohio St. 342, 45 N. E. Rep. 559, 60 Am. St. Rep. 700; Heaven v. Pender, 11 Q. B. Div. 503; Railroad Co. v. Booth, 98 Ga. 20, 25 S. E. Rep. 928, all of which cases the court in the principal case cited in support of its first decision.

A better reason, however, for denying the right to recover in cases like the present is that the liability to a servant ceases with the control of the master over his actions. In Glynn v. Railroad Co., 175 Mass. 510, 56 N. E. Rep. 698, 78 Am. St. Rep. 507, the plaintiff was in the employ of the New York, New Haven & Hartford Railroad Company, in Connecticut, and was injured while coupling a car belonging to a New Jersey railway company, which had a defective coupling apparatus. He sued the latter company. The court, in holding the defendant not liable, said: "There was no dispute that, after the car had come into the hands of the New York, New Haven & Hartford Railroad, and before it had reached the place of accident, it had passed a point at which the cars were inspected. After that point, if not before, we are of opinion that the defendant's responsibility for the defect in the car was at an end.

But when a person is to be charged because of the construction or ownership of an object which causes damage by some defect, commonly the liability is held to end when the control of the object is changed." This rule is supported by the following authorities: Clifford v. Cotton Mills, 146 Mass. 47, 15 N. E. Rep. 84, 4 Am. St. Rep. 279; Sawyer v. Railroad Co., 38 Minn. 103, 35 N. W. Rep. 671; Wright v. Canal Co., 40 Hun, 343; Mackin v. Railroad Co., 135 Mass. 201. In Winterbottom v. Wright, 10 Mees. & W. 109-114, the defendant had contracted with the postmaster general to provide a coach for carrying the mail, and agreed to keep it in repair, and fit for use. Other persons had a contract with the postmaster general to supply horses and coachmen for conveying the coach. The vehicle broke down, and injured the driver, by reason of the negligence of the defendant in failing to keep it in proper repair and fit for use. Lord Abinger said: "There is no privity of contract between these parties; and, if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts.as this to

the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue." See, also, as sustaining the same rule: Collins v. Seldon, L. R. 3 C. P. 495; Heizer v. Manfg. Co., 110 Mo. 605, 19 S. W. Rep. 633, 33 Am. St. Rep. 482, 15 L. R. A. 821.

The court in the principal case sums up the question in the following clear and logical statement: "A railroad owes a duty to their own servants to see that the cars put in their charge were in a reasonably safe condition and in proper repair, but to extend this duty to every servant of every other railroad in the United States under whose charge defective cars might come would be to formulate a new rule of liability for negligence not sustained by reason or authority."

WHETHER A SALE ATTACKED FOR FRAUD OF VENDOR WILL BE SET ASIDE FOR INADEQUACY OF PRICE ONLY, WHERE THE CONSIDERATION WAS A SMALL DEBT OF THE VENDEE AND HIS VERBAL PROMISE MADE TO THE VENDOR ALONE TO PAY CERTAIN OTHER DEBTS OF THE VENDOR, FOR WHICH THE VENDEE WAS LIABLE AS SURETY, AT THE TIME OF THE PURCHASE?

When the fraud of the vendor is established, to constitute the vendee a bona fide purchaser he must prove the adequacy of the consideration paid for the property. This plea is an affirmative plea in this, the vendee must show satisfactorily the existence, amount, and justice of his debt, and the payment of value for the property fraudulently conveyed. He must either pay the purchase money before notice of the fraudulent purpose of the seller, or, if his undertaking is to pay the debt of the vendor owed a third person, he must irrevocably bind himself to do so, and must be substituted as debtor in place of his vendor. The debt of the vendor must be extinguished, the vendor must be released from all liability, before such debts can be considered any part of the price or consideration. 3

The promise made the vendor to pay his debt owed a third person, is not a promise to pay the debt of a third person. It is merely a promise to pay the purchase price to one, other than the vendor, and hence not within the statute of frauds. It is wanting, though, in one of the essential elements necessary to constitute such promise a part of the consideration money; viz., the absence of the vendor's creditor's consent to

1 Richards v. Vaccaro, 67 Miss. 519; Atkinson v. Greaves, 70 Miss. 45; Bamberger v. Schoolfield, 40 Law Ed. U. S. Rep. 379.

Wait on Fraudulent Con., sec. 369, p. 485; 8 Ency. Law, 1 Ed. 756; 2 Pomeroy Equity, sec. 750.

32 Pomeroy, sec. 751, note 1 citing authorities; Pollock v. Simmons, 76 Miss. 210; Bank v. Strouse, 66 Miss. 484 citing authorities.

4 Ware v. Allen, 55 Miss. 547.

the novation. There must be a surrender and extinguishment of the vendor's debt, and the acceptance of the vendee's promise alone to pay the purchase price to the vendor's creditor. For this reason it fails as an assignment and transfer of the purchase money to the vendor's creditor.

The written obligation of the vendee given to the vendor alone, reciting as a part of the consideration money a promise to pay the debts of the vendor owed other creditors is equally ineffectual as the vendee's verbal promise, for it still leaves the vendor's debts unpaid, still leaves them in full force, and destroys the idea that such debts constitute any part of the consideration money of the sale.

The oral obligation of the vendee is just as binding as his written obligation to pay the debts of the vendor to third party creditors. Both are legal obligations inter sese, and may, at any time, be assigned or transferred to the vendor's creditors, by the creditors consenting to surrender and extinguish the debts of the vendor and accept in lieu thereof this debt of the vendee for the purchase money. Until that is done, though the two classes of debts remain distinct and independent of each other, the purchase money debt remains the property of the vendor, and the vendee has neither paid any of this part of the consideration, or irrevocably bound himself to do so. If, when the transaction or obligation is in this shape, the goods be seized by attachment or otherwise and taken away from the vendee, neither the vendor nor his creditors, thus sought to be protected, could recover the purchase money debt from the vendee. The plea of the failure of consideration would be a good defense for the vendee thus circumstanced.

This being unquestionably the general law, the question directly under inquiry is, what effect would the verbal promise of the vendee to pay the vendor's debts, when he was already liable as surety for such debts, have on the sale when attacked for inadequacy of price as only evidence of fraud in hands of vendee, the fraud of the vendor being conceded? The vendee's plea would be that of a bona fide purchaser for value, with the onus on him to show that he paid, or irrevocably bound himself to pay, an adequate price for the goods. His being legally liable to these same creditors of his vendor on another and distinct obligation from that growing out of the sale, could in no way affect these creditors' rights and claims against his vendor. His vendor still remains liable on these debts which, as vendee, he was to pay as part of the consideration of the sale. The fact that the vendee is liable also as surety for these same debts, neither pays them, or in any other way releases the vendor from liability. This suretyship of the vendee adds no additional force or efficacy to the verbal or written promise made to the vendor to pay the purchase price of the goods, by paying these debts to the vendor's creditors. Inter sese between vendor and vendee, the liability of suretyship, through the new prom

ise, no more pays or extinguishes these debts than the liability of suretyship would inhibit the payment or extinguishment of these debts being used as a consideration of the sale.

Between the vendee and vendor's creditors the liability of suretyship could not have the legal effect to extinguish their debts against the vendor, perforce this agreement between the vendor and vendee that the relationship of principal and surety as between them should be reversed as to these debts. The private agreement between vendor and vendee does not concern the vendor's creditors; they had the same rights before this private agreement as they had afterwards. The general rule, as stated before, applies in all its force, for before the transaction can constitute any part of the consideration of sale, the vendor's creditors must change their position, must make the concession by giving up their debt against the vendor.

W. H. CLIFTON.

LIABILITY OF LANDLORDS FOR DANGEROUS CONDITION OF LEASED PREMISES.

The modern law of landlord and tenant reflects the harshness of the feudal system. The tenant under that ancient method of land tenure must render to the overlord services, in default of which the estate was defeated; he could not alien without the lord's consent and he was burdened with fines and cumbersome incidents of tenancy. Today the lessee must beware lest he, by annexing his chattels to the freehold, lose his ownership in them, to the landlord's advantage; he must continue to pay rent during his term, after the building he rented for a home has become a heap of ashes; he must repair the premises and can claim no damages from his landlord for failure on the part of the latter to render the abode habitable.

In the following pages we shall consider what is the liability imposed upon a landlord for defects and dangerous conditions in the premises, and in what instances he may be held to answer in damages as for a tort. For it must be carefully remembered that although there is no implied contract or covenant by the lessor that the prem ises are safe, sound or habitable, and while the rule is firmly established that the tenant takes the premises exactly as he finds them, and subject to all their apparent defects, still there is a broad responsibility

1 Franklin v. Brown, 118 N. Y. 110, 6 L. R. A. 770, 23 N. E. Rep. 126; Perez v. Raybaud, 76 Tex. 191, 7 L. R. A. 620, 13 S. W. Rep. 177.

resting upon the landlord, arising ex delicto for negligence or the creation of a nuisance, which is independent of contract and is imposed solely by operation of law.

When, therefore, may the landlord be made to answer in damages in an action on the case, at the instance of his tenant or of a stranger? The theory upon which the law proceeds in exonerating the landlord from liability for defects, is that he who has the possession, is under a duty to render the premises safe. If the owner retains possession, or the leasing is of such a character that it cannot fairly be said that the tenants obtain possession to a particular part, the reason and the rule fail. Thus it has been held that if the premises are leased to different tenants and they are permitted, under the contract, to use the roof in common, the landlord must repair it, and if he does not and a tenant or third party is injured because of his neglect, the lessor is liable.2 The same rule is applied to passage ways used by all tenants, but which the landlord is under a duty, implied in law, to keep free from dangerous obstructions.3 This general doctrine, however, does not purport to lay an absolute responsibility upon the owner of the premises, but only requires that he make careful inspection to determine, from time to time, if the common portion is in need of repair. His examination should be more than casual but need not be critical. Similarly, if the landlord in control of a part of the premises uses that portion negligently to the detriment of his tenants, he is liable by elementary principles for the damaging consequences of his acts, or if, being out of possession, he assists the tenant in the creation of a nuisance upon the land, by authorizing the lessce to build a dangerous structure and actively participating in its erection.6

5

Where there is no question as to authoriz

2 Wilcox v. Zane, 167 Mass. 306, 45 N. E. Rep. 523; O'Connor v. Andrews, 81 Tex. 28, 16 S. W. Rep. 628. 3 Wilber v. Follansbee, 97 Wis. 577, 72 N. W. Rep. 741, 73 N. W. Rep. 559; Leydecker v. Brintnall, 158 Mass. 292, 33 N. E. Rep. 399; Lynch v. Swan, 167 Mass. 510 (semble) 46 N. E. Rep. 51.

4 Lenz v. Aldrich, 39 N. Y. Supp. 1022, (clothes poles becoming rotten).

5 Railton v. Taylor, 20 R. I. 279, 39 L. R. A. 246, (R. I.), (use of basement for furnace purposes).

Riley v. Sampson, 83 Cal. 217, 7 L. R. A. 622, 23 Pac. Rep. 293.

ing or creating a nuisance, the landlord may still make himself answerable in damages for his negligence, though he be out of possession and under no duty to enter and repair or alter the premises. He may be sued in tort if he actually undertakes to make repairs upon premises occupied by his tenant (whether with or without solicitation from the latter and whether gratuitously or for a consideration) and in so doing is negligent; thus inflicting damage on the occupant. This rule depends not upon the contract relation between the parties, nor is it peculiar to the relationship of landlord and tenant. It is an application of the broader principle that where a party undertakes the performance of an act at the request or with the consent of another and in the doing of it is guilty of carelessness, amounting to misfeasance, he is liable to the person injured by reason of such negligent performance. Chancellor Kent announced the doctrine by saying. "A distinction exists between nonfeasance and misfeasance; that is, between a total omission to do an act which one gratuitously promises to do, and a culpable negligence in the execution of it. It is conceded in the English as well as the Roman law that, if a party makes a gratuitous engagement and actually enters upon the execution of the business, and does it amiss, through want of due care, by which damage ensues to the other party, an action will lie for this misfeasance."7

It has been said that "when one man does another an injury by unskillfully and improperly doing what he had promised to do, an action may be maintained to recover the damage, although there was no consideration for the promise If instead of assumpsit

a special action on the case had been brought for misfeasance, it is very clear that no consideration need have been alleged or proved. The gist of such an action would have been the misfeasance, and it would have been wholly immaterial whether the contract was a valid

one or not."8 The application of this principle has frequently been made to cases where landlords, under no duty to repair the rented premises, have nevertheless undertaken to do

72 Kent's Com. star pages 569, 573; Elsee v. Galward, 5 D. and E. 143.

8 Bender v. Manning, 2 N. H. 289, 291; Accord, Thorne v. Deas, 4 Johns, 84, 86.

so, and have performed the work carelessly." Thus, the landlord has rendered himself liable by negligently renovating some portion of a vault upon the premises; as where he repairs the top board seat, but in replacing it, drives the nails back into the old holes, whereby the seat is rendered insecure;10 where the seat is reconstructed but is left in a dangerons condition;11 or where the outhouse and an approach thereto are in a defective condition, and the owner of the property, after his attention has been called to the same, undertakes to repair but the work is insufficiently performed; whereby the floor of the vault falls. 12 So, too, there is liability on the part of the owner if the negligence has occurred in the repair of the foundations of the building; as where the upper floors are insecurely supported during the progress of alterations.13

The severity of this doctrine appears in a statement of a New York court, holding that "if with tenants in the building, the defendant (landlord) desired to make repairs, affected the supports and foundations of the building, he was bound to use the greatest degree of care, not merely ordinary care, because he is bound to us this degree toward persons to whom he owes no duty; and if, by his alterations he endangers the safety of his tenants he does so at his peril, and cannot shield himself from responsibility after a catastrophe has happened by saying, 'I used ordinary care, and employed skillful mechanics, but in spite of all, for some unknown reason, the building fell.' The presumption in such a case would be that the building fell because of the repairs, and unless the landlord could show what the cause was, and that he was in no degree responsible for it, such presumption would remain. If the landlord assumes to meddle with the supports of an occupied building, he does so at his peril; and if an accident is caused thereby, and his tenants are injured, to whom he owes the duty of leaving them in quiet possession,

*

9 Barrows on Negligence, pp. 313, 316; Wharton on Negligence, section 792; Bevan on Negligence (2d Ed.), vol. 1 p. 488; Buswell on Personal Injuries (2d Ed.), p. 137; Taylor on Landlord and Tenant (8th Ed.), p. 195, sec. 175. And see Blake v. Dick, 38 Pac. Rep. 1072, 1074, 15 Mont. 236.

10 Little v. Macandras, 29 Mo. App. 332, 334; Little v. Macandras, 28 Mo. App. 187, 190.

11 Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548. 12 Gregor v. Cady, 82 Me. 131, 19 Atl. Rep. 108. 13 Butler v. Cushing, 46 Hun, 521.

the least that can in justice be required is, that he should show that he has exercised the highest degree of care and that, nothwithstanding such care, the accident has occurred."14

Repairs upon a roof of a building occupied by tenants will subject the landlord to liability if the tenants are damaged by reason of the negligence in making the alterations;15 and the same doctrine has been applied even though the lease contained an express stipulation to the effect that: "The landlord shall not be liable for any damage caused by leakage of water, or for any cause or event.''16 Similarly it has been decided that where the landlord undertook to repair a defective porch and performed the work carelessly, he was liable; 17 that where he undertook to clean a cess-pool upon the premises, and after taking out several pails full, removed his appliances and carefully replaced the cover upon the well, he was answerable to the tenant who stepped on the cover and was injured;18 that where the landlord placed props against a wall, which the tenant had notified him was cracked, and the wall fell, there was a duty on the landlord's part to repair properly, if he undertook to repair at all;19 and that the owner of premises was liable to his tenant (a bookseller) where he attempted to repair the water pipes, conducting water from the roof, but in doing so left a loose joint in one of the pipes; through which aperture water escaped and damaged the plaintiff's books. 20 In a recent Indiana case the landlord had entered upon the premises to repair a well and carelessly left it uncovered and unguarded during the night. A guest of the tenant fell into the well; he recovered in tort against the landlord. The court expressly placed their decision upon the ground that the landlord committed an affirmative wrong in creating a dangerous condition; and they lay out of the

14 Judge v. Cushing, 50 Hun, 181, 186, 187. And see Hine v. Cushing, 53 Hun, 519.

15 O'Rourke v. Feist, 59 N. Y. Supp. 157; Evans v. Murphy, 40 Atl. Rep. 109; Wertheimer v. Saunders, 95 Wis. 573, 70 N. W. Rep. 824; Sulzbacker v. Dickie, 51 How. Pr. Rep. 500.

16 Randolph v. Feist, 52 N. Y. Supp. 109.

17 Wilcox v. Hines, 100 Tenn. 545, 46 S. W. Rep. 297. 18 Riley v. Lissner 160 Mass. 330, 35 N. E. Rep. 1130. 19 Lynch v. Oxtleib, 87 Tex. 590, 28 S. W. Rep. 1017. 20 Worthington v. Parker, 11 Daly, 545.