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been introduced of adulterous intercourse during discoverable to the tenant by the exercise of orthe period covered by the indictment, proof of dinary care, and he does not inform the tenant of similar acts or improper conduct prior to that such defective or dangerous place, and injury is time may be received in corroboration. State v. occasioned thereby to the tenant or a member of Pippin, 88 N. Car. 646; State v. Markins, 95 Ind. his family who is not aware of such defective or 464; Cross v. State, 78 Ala. 430; Brevaldo v. State, dangerous place, while in the exercise of ordinary 21 Fla. 789; State v. Way, 5 Neb. 283; Common care, the landlord is liable to damages. wealth v. Durfee, 100 Mass. 146; State v. Marvin, The facts in this case show that while the 35 N. H. 22; State v. Henderson, 84 Iowa, 161; plaintiff in error was about her housebold duties Commonwealth v. Bell, 166 Pa. St. 405. This upon said premises, drawing water from a well rule constitutes an exception to the general rule used for domestic purposes, and located at the of evidence in criminal proceedings, that the residence, the platform around the well gave commission of other, though similar, offenses by way, precipitating her into the well, from the defendant cannot be proven to show the like which she sustained personal injuries. The lihood of his having committed the offense allegations in the petition, wbich was held charged. But, as was said in a recent case, this rule good on general demurrer, were in substance as has been, of necessity, specially relaxed in cases follows: First, the allegation of the lease bewhere the offense consists of illicit intercourse tween the parties and the occupation of plaintiff between the sexes. State v. Markins, 95 Ind. 464. thereunder; that the well that was intended Later the rule was again extended and has now for use for domestic purposes, and situated at been generally adopted tbat, on a charge involving the porch of the residence, was covered with a illicit intercourse, during a particular period, evi wooden platform or planks; that the defendants dence of acts subsequent to that time, which tend in error had built the platform over this well, and to illustrate or explain similar acts within the had constructed it of inferior and unsuitable maparticular period, are admissible in connection terial, selected by them for that purpose, and with evidence of similar acts during the time used in its construction by their direction; that laid, to prove illicit intercourse as charged. See the sleepers or stringers under this platform were Brooks v. State, 52 Ala. 24; State y. Bridgman, in a defective and unsafe condition at the time of 49 Vt. 202; Cole v. State, 65 Tenn. 243; State v. the leasing and taking possossion by plaintiff in Williams, 76 Me. 480; Commonwealth v. Nichols, error; that the defendants in error knew this, 114 Mass. 285. This latter extension of the rule

and, notwithstanding their knowledge, they however, has not been universally accepted. negligently, fraudulently and carelessly concealed For instance, some States, like Iowa, refuse it from the plaintiff, as well as from her husband, to include subsequent acts within the excep the lessee, and failed to disclose said knowledge tion to the general rule and hold that where the to the plaintiff or her husband; that the defects charge is of one act of adultery to which evi in the sleepers or stringers were not obvious, and dence has been given, the prosecution is not could not be discovered by the exercise of ordipermitted afterwards to introduce evidence of nary care; that the plaintiff in error did not other acts committed subsequently. State v.

know of such defective material or the dangerous Donovan, 61 Iowa, 278, citing 2 Greenleaf on Evi

condition of the platform; that in the performdence, sec. 47.

ance of her household duties she was required to,

and frequently did, draw water from this well; LANDLORD AND TENANT-LIABILITY OF LAND

and that upon this occasion, about two months LORD FOR DEFECTIVE PREMISES.-One of the

after they had gone into possession, she was in most controverted questions of law to-day is the

the exercise of ordinary care, and while performliability of a landlord for the defective condition

ing her household duties, and in attempting to of his premises. The common law practically

draw water from this well, the sleepers or excused the landlord from any liability whatever

stringers under the platform around the well in such cases. But since the late case of Wilcox

gave way, and she was precipitated into the well, v. Hines, 100 Tenn. 538, so severely criticised by

whereby she sustained personal injuries. law journals and annotators, the tendency has

The court makes this excellent statement of been to relax the rule at common law in favor of | the rule of law to be applied to such a statement the tenantand hold the landlord liable,not only for of facts: his positive torts, but also for his concealment of "In deciding this question, we are not called latent defects within his knowledge or which upon to determine the liability of the landlord, ought to be. This tendency is well illustrated by where he did not have actual knowledge of the the recent case of Moore v. Parker, 6+ Pac. Rep. defective condition of the premises. A landlord

75, where the Supreme Court of Kapsas held is not an insurer or warrantor, nor is he comthat a landlord is not an insurer or warrantor, pelled to exercise constant care and inspection; nor is he compelled to exercise constant care and but if he knows that the premises which he is inspection; but if he knows that the preinises about to let are in a dangerous condition, and which he is about to let are defective and in a especially if such danger or defect is not obvious, dangerous condition, and especially if such dan- | or is not discoverable by the means of the tenant gerous or defective place is not obvious or is not by the exercise of ordinary care, and does not in

form him of such danger and injury is occasioned changes in law the relations of the parties thereby to the tenant or a member of his

interested, that it places the one willing to family, the landlord is liable in damages. The law requires good faith on the part

continue under an entire new obligation, and of the landlord towards his tenant. The

one not specified in the contract. Such obdefect existed when the premises were leased, ligation is never stated at less than to refrain and the defendants in error knew this, and in from further performance, and often there is tentionally concealed it from their lessee; and,

superadded the duty of using all ordinary it being a defect not discoverable by the lessee

care and making all reasonable exertion to or his family in the exercise of ordinary care and reasonable diligence, we have been unable

render the injury as light as possible. By to find any principle upon which the demurrer the exercise of the power mentioned the conshould have been sustained. The rule seems to tract is not put an end to as upon a rightful be that in the absence of a contract to repair, or

rescission, but survives in force as a basis of warranty of condition, both landlord and tenant

the right to recover damages by the party must use reasonable care and diligence. If

not in fault. The liability to respond in the tenant neglect such reasonable care and diligence to ascertain the condition of damages on the part of the party stopping the premises, or, knowing their condition, as performance, and the right of the party willsumes the risk, then he cannot recover ing to perform to recover damages, constiagainst the landlord. On the other hand,

tute the foundation of the power to stop perif the landlord actually knows they are unsafe, and conceals or misrepresents their condition,

formance accorded by the law to the one then he is liable; the tenant being in no fault."

party and the obligation thereby imposed The court bases this statement of the law on upon the other to refrain from performance. the following authority: Wilcox v. Hines, 100 The damages awarded by the law to the Tenn. 538; Edwards v. Railroad Co., 99 N. Y.

party not in default for a breach of the con249; Coke v. Gutkese, 80 Ky. 598. The case of

tract—and the exercise of the power under Wilcox y. Hines, however, goes further than the statement of the court in this case and holds the

consideration is nothing other than a breach landlord liable for what he ought to know as well -are deemed to be the equivalent, measured as for what he actually knows. For full discus

in money, of the advantages to be derived sion of this important question see 52 Cent. L.

from complete performance, or as often exJ. 388.

pressed, full compensation for the injury in

flicted. In awarding damages the law aims THE POWER OF ONE PARTY TO AN fully to compensate the party not in fault for

EXECUTORY CONTRACT TO STOP | the injury suffered.? Indeed, from the preITS PERFORMANCE WITHOUT THE sumed inadequacy in some instances of the CONSENT OF THE OTHER.

damages recoverable at law to compensate

for the injury arises the jurisdiction in It has often been ruled by the courts that equity to decree specific performance. And one party to an executory contract may therefrom also doubtless may be discovered rightfully stop performance under it at any one of the reasons for excepting contracts of stage before full completion, but subject to which equity will decree a specific performthe liability of responding in damages to the ance from the general rule under consideraparty able and willing to continue its execu tion. However, in all cases where the damtion. Indeed, it is believed, that in all cases ages recoverable at law for the breach of a except where equity will enforce specific per contract are judicially deemed a just equivaformance-such instances as a class form- lent for the injury there seems to exist in ing an exception to the general rule-one | favor of the party willing to subject himself who is willing to subject himself to the lia- to a liability for such damages, the right of bility for such damages as are recoverable at stopping performance by the other party to law for the breach of his contract, has the legal right to stop performance at any point 11 Suth. Dam. 88, and cases cited; Dillon v. Ander.

son, 43 N. Y. 231. before its full accomplishment. The right is

2 Moline Scale Co. v. Beed, 52 Iowa, 307, 3 N. W. usually denominated the power to stop per Rep. 96; Griffin v. Colver, 16 N. Y. 489; Allison v. formance, and notwithstanding its exercise is Chandler, 11 Mich. 542.

3 Morgan v. Bell, 3 Wash. 554, 28 Pac. Rep. 925, 16 deemed to constitute a breach of the con

L. R. A. 614; 3 Par. Cont. 350, ch. 11. tract, it nevertheless, to such an extent | Marsh v. Blackman, 50 Barb. 333.

the contract at any period. In the nature work, to make the penalty upon the defend. of things the power exists in respect of ex. ant greater than it otherwise would have ecutory contracts only, and though as before been. To hold that one who employs anintimated its exercise is deemed a breach of | other to do a piece of work is bound to sufthe contract, it seems nevertheless to adbere fer it to be done at all events would somein and constitute an implied provision or in. times lead to great injustice. A man may cident of the contract itself, and in point of bire another to labor for a year, and within time to continue until the full execution of the the year his situation may be such as to ren. contract is accomplished by the party willing der the work entirely useless to him. The to perform. An early case in New York party employed cannot persist in working, with great force and clearness states the rule though he is entitled to the damages conseand the reason upon which it rests. Of quent upon bis disappointment. So if one this decision Mr. Bishop, in his work on bires another to build a house, and subse. Contracts,' says: “The opinion in this case quent events put it out of his power to pay is brief; it cites no authorities, but in legal for it, it is commendable in him to stop the argument it is conclusive," and it might be | work and pay for what has been done, and added that no subsequent decision seems to the damages sustained by the contractor. have discovered or suggested any additional He may be under a necessity of changing bis reason for the rule. The case was: The de residence, but upon the rule contended for, fendant delivered a number of paintings to be would be obliged to have a house which the plaintiff to be cleaned and repaired at he did not need and could not use. In all certain prices stipulated for each. After the such cases the just claims of the party em. plaintiff had commenced work upon them, ployed are satisfied when he is fully recomthe defendant directed him not to go on as pensed for his part performance and indemhe had concluded not to have the work done. nified for his loss in respect to the part left The plaintiff, however, finished the work and unexecuted ; and to persist in accumulating claimed to recover for the whole, insisting a larger demand is not consistent with good that the defendant had no right to counter. faith toward the employer.” The judgment mand the order. At the trial requests for was reversed. instructions by each party according to his It is noticeable that in the suppositious contention were asked, but the court in cases mentioned the court finds reasons structed the jury that inasmuch as the plaint excusing the discharge of the laborer and the iff had commenced the work before the order discontinuance of work upon the house, but was revoked, he had a right to finish it, and in the statement of facts in respect to which to recover the whole value of his labor and the decision was made, no excuse is discov. for his materials furnished. The verdict and ered or referred to. It is, therefore, clearly judgment were for the plaintiff. In consid. inferable that the event by which a party is ering the defendant's exceptions to the induced to break his contract is not a charge upon errors assigned, the court says: material subject of inquiry in an action to " * * * The defendant by requiring the recover damages for such breach. And to plaintiff to stop work upon the paintings vio such effect doubtless is the law as disclosed lated his contract, and thereby incurred a by the tenor of the decisions upon the quesliability to pay such damages as the plaintiff tions, though the language of some of the should sustain, * * * but the plaintiff common-law prececents would seem to indihad no right by obstinately persisting in the cate that the rule is otherwise.

Upon the authority of this decision the 8 The right is most frequently designated power,"

Supreme Court of Vermont, held where a but it is believed inaptly, inasmuch as it seems to be contract in writing bad been entered into to more in the nature of a right or privilege. But it is do all of a certain class of work upon three not necessary to be hypercritical, and so either desig.

miles of railroad at a specified price per cubic nation is used at convenience.

6 Though the statement of the text seemed para. yard, and the plaintiffs had performed a doxical, yet it is believed to be fully justified by the part of it when the defendants directed and decisions considered, infra, herein.

requested the plaintiffs to discontinue the 7 Clark v. Marsiglia, 1 Depio, 317. 8 Sec. 839, note 1.

9 Derby v. Johnson, 21 Vt. 17.

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further execution of the contract, and they in the execution of the contract.")2 The 80 did, that it was not an abandonment but contract in this case was for the purchase & breach of the contract. Hall, J., says: and delivery of a quantity of potatoes, and a "The direction of the defendants to the fall in the market price was the reason by plaintiffs to quit the work was positive and which the defendant was induced to direct unequivocal, and we do not think the the plaintiff not to make further purchases. plaintiffs were at liberty to disregard it. In The same principle was applied to a contract Clark v. Marsiglia, 1 Denio, 317, it was held, I between a city and a lighting company, 13 that the employer in a contract for labor wherein it appeared that the city by a resoluhad the power to stop the completion of it, tion of its common council approved by the if he chose-subjecting himself thereby to mayor, declared such contract at an end and the consequences of a violation of his con wholly rescinded and so notified the company. tract; and that the workman, after notice to The court say:14 “As we understand the quit work, had not the right to continue his law applicable in such cases, it gives to the labor and claim pay for it, and this seems to city, notwithstanding the contract, the abbe reasonable.” The court further ex solute right, at its own election, to decline pounds the reason for the rule as applied to to receive any more gas under it, thereby the case before it, and says: “Rather than refusing performance on its part.16 And the an injury so greatly disproportioned to that doctrine has been applied to a contract for which could possibly befall the workman future employment and service where the should be inflicted on the employers, it employer at the time the service was to seems better to allow them to stop work, commence absolutely repudiated the contaking upon themselves, of course, all the tract.16 The case holds that the remedy of consequences of such a breach of their con the employee is not in action for wages, but tract. Such we think is and ought to be to recover damages for the breach of the conthe law.” The decision also holds that it tract. So when the state had entered into a was optional with the plaintiffs to treat the contract with an individual for the erection contract as rescinded from the beginning, of a public building and afterward the legisand, though the defendants urged that the lature passed an act suspending and disconrate of compensation specified in the con tinuing the work or providing for its pertract should be the only rule of recovery, formance by other agencies, it was held that it was held that the plaintiffs might re the state stands, in this respect, in the same cover as upon a quantum meruit for the work position as an individual, and may at any done. 10 The court reasons that to hold to time abandon an enterprise and refuse to althe rule contended for by the defendants low the contractor to proceed. Such re"would impose upon the plaintiffs a con fusal would be only a violation of its contract they have never made.” The location tract. The rule that the remedy is limited of the railroad had been changed from the to the recovery of damages is applicable to place where the work was contracted to be contracts only while they are executory and done. So there was ample excuse for the the consideration for which is entire and not direction given not to continue the work. divisible.18 In Butler v. Butler19 the case was: And the same court in a later case," speak 12 See also Freidlander v. Pugh, 43 Miss. 117, 5 Am. ing by Peck, J., says: “While a contract Rep. 781, citing with approval Clark v. Marsiglia, 1 is executory, a party has the power to stop

Denio, 317.

13 City, etc. v. The Nebraska, etc. Co., Neb. 339, performance on the other side, by an ex

N. W. Rep. 870. press direction to that effect, by subjecting 14 Lake, J., writing the opinion. himself to such damages as will compensate

15 Citing Clark v. Marsiglia, 1 Denic, 317.

16 Howard v. Daly, 61 N. Y. 362. the other party for being stopped in the per 17 Lord Thomas, 64 N. Y. 107, citing only Clark v. formance on his part at that point or stage | Marsiglia, 1 Denio, 317. It is also held that the obli.

gation of the contract is not impaired by such re.

fusal, the contractor having a remedy for his damages 10 Citing Tyson v. Doe, 15 Vt. 571, and distinguish. by appeal to the legislature. See also People v. ing Koon v. Greenman, 7 Mich. 121. But it is not Stephens, 71 N. Y. 527. believed that the rule stated in the text is generally 18 Moline Scale Co. v. Beed, $2 Iowa, 307, 3 N. W. accepted.

Rep. 96. 11 Danforth v. Walker, 40 Vt. 239, 37 Vt. 239.

19 77 N. Y. 472.

The plaintiff contracted to erect on the de the court, says: “The utmost that can be fendant's premises a complete machine all urged is that he (the defendant) arbitrarily ready to make gas. The defendant agreed refused to perform his part of the contract. to pay freight on the machine and to furnish This would subject him to an action for tank and house and pay $1,500 “when the damages for breach of the contract. But works are on the ground.” The plaintiff the plaintiffs could not, in the face of this shipped the materials and parts of the ma refusal, undertake to carry to completion the chine which the defendant received and paid work * * * and insist that they were entitled the freight thereon, but did not permit the to recover from the appellant his share of plaintiff to put up the macbine. The court the contract price. The authorities are held that an action to recover the contract very clear on this point.”26 The defendants price was not maintainable ; that as the con were two of a large number of subscribers tract was entire and had not peen performed, agreeing to contribute specified sums toand as the contract price was not divisible wards the contract price of a creamery to no recovery could be had for any portion of be built by the plaintiffs. No reason is it. The delivery of the parts only did not assigned for the defendant's countermand constitute the delivery of a complete article ; of his subscription. He acted arbitrarily. the property of such parts did not vest in And, the same year the question came the defendant and the consideration or con- | before the Supreme Court of Minnesota. 27 tract price not being divisible the plaintiff's The general principle is fully affirmed upon only remedy was to recover damages for a the authority of the case of Davis v. breach of the contract.20 To the same ef- | Bronson, just cited and of some of the fect is Hosmer v. Wilson, wherein decisions in note 25, supra. Collins, J., Christiancy, J., after stating the reason as- continuing says: “The legal right, on signed for the holding in Clark v. Marsiglia, | general principles, of either party, to violate says: “This doctrine is fully approved in | abandon, or renounce his contract, on the Derby V. Johnson above cited.22 This usual terms of compensation to the other for would seem to be good sense and, therefore, the damages which the law recognizes and sound law. And it would seem that any allows—subject to the jurisdiction of equity other rule must tend to the injury and, in to decree specific performance in proper many cases, to the ruin of all parties.” The cases—is universally recognized and acted rule has been approved in Massachusetts.23 upon.”'28 It should be noted also that in The court says: “A party to an executory this instance no reason, other than the arbicontract may stop its performance by an ex trary will of defendant, is found or required plicit order, and will subject himself only to justifying the exercise of the right. In such damages as will compensate the other each of these actions the contract price was party for being deprived of its benefits.” sought to be recovered. 29 And the explicit order or notice would be

26 Citing Bishop, Cont., secs. 837 841; Danforth v. sufficient if given to such agent or employee Walker, 37 Vt. 239, 40 Vt. 257; Moline Co. v. Beed, 52 as was authorized to stand in the place of | Iowa, 307, 3 N. W. Rep. 96; City of Nebraska v. Coke and represent his principal in the particular

Co., 9 Neb. 339, 2 N. W. Rep. 870; Clarke v. Marsiglia,

1 Denio, 317; Butler v. Butler, 77 N. Y. 473. branch of his business connected with the

27 Gibbons v. Bente, 51 Minn. 499, 53 N. W. Rep. subject of the contract, though such notice 756. should never come to his personal knowl. 28 Citing Bishop, Cont. par. 837; Leake, Cont. 868,

1044; 1 Suth. Dam. 113; 2 Suth. Dam. 193, 526; Hickedge.24

ley v. Steele Co., 121 U. S. 264, 7 Sup. Ct. Rep. 875; And again the question was directly pre Ins. Co. v. McAden, 109 Pa. St. 399, 1 Atl. Rep. 256; sented to the Supreme Court of North Da

Frost v. Knight, L, R. 7 Exch. 112; Roper v. Johnson,

L. R. 8 C. P. 167; Laird v. Rim, 7 Mees. & W. 474; kota in 1892.25 Corliss, C. J., writing for

Hochster v. Dela Tour, 2 El. & Bl. 678. 20 Citing Ich bald v. The Western, etc., 17 C. B. (N. 29 The cases cited from North Dakota and MinS.) 733; Blanch v. Cocheran, 8 Bing. 14.

nesota were upon the same general form of contract, 21 7 Micb. 204.

only differing in names and location. A motion for a 2921 Vt. 17.

rehearing was made in each court. In the former 28 Collins v. Delaporte, 115 Mass. 159.

case the court adhered to its decision holding the con24 Dillon v. Anderson, 43 N. Y. 281.

tract to be entire. In the latter case the court 25 Davis v. Bronson, 2 N. Dak. 300, 50 N. D. Rep.

granted a rehearing, and thereupon receded from its | former decision, holding that the contract created a


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