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fail to see the force of this reason- Torts, 99; Leahan v. Cochran, 86 Am. ing. The cesspool was used for the St. Rep. 516, note." very purpose for which it was con- That the doctrine of liability as tortstructed, and the tenant had the right feasors is the basis for the rule is to so use it. We cannot measure the further supported both by the fact extent to which a cesspool may be law- that in discussing and applying the fully used. Its lawful use in this case rule the courts do not discuss the docresulted in a nuisance to the plaintiff; trine of proximate cause, and by the the defendant demised the premises trend of the inquiry in developing the with the cesspool so located that it theory upon which the nuisance cases would naturally produce such a re- are decided. The theory upon which sult, and for this result we must hold the landlord is usually held liable, her to be liable.” It thus appears where the premises are leased with clearly that the liability of the lessor a nuisance, is that he created the could not be avoided by an argument nuisance and will be presumed to that the lessee's acts, and not her own, have intended the continuance therewere the proximate causes of the in- of, or that he acquired title with jury. Their combined acts created an existing nuisance upon the premand continued the nuisance which was ises and knowingly leased them in the proximate cause of the injury for that condition. In either case the which either or both were liable in act of leasing with the nuisance is damages. This case is cited with ap- held to raise the presumption that he proval in Wunder v. McLean (1890) intended the nuisance to be continued. 134 Pa. 334, 19 Am. St. Rep. 702, 19 So the decisions frequently turn upon Atl. 749, and in Brown v. White (1902) the question of what facts and cir202 Pa. 297, 58 L.R.A. 321, 51 Atl. 962. cumstances will overcome this pre

Another clear statement of the prin- sumption. For example, it was held ciple is found in the opinion in Pick- in Cerchione v. Hunnewell (1913) 215 ens v, Coal River Boom & Timber Co. Mass. 588, 50 L.R.A.(N.S.) 300, 102 N. (1905) 58 W. Va. 11, 50 S. E. 872, 6 E. 908, in harmony with the rule in Ann. Cas. 285, where the court said: the English courts, but contrary to “If a landlord let premises already a the weight of American authority, that nuisance, he and the lessee are both, the presumption was overcome by the or either, liable for the continuance. covenant in the lease that the tenant The landlord cannot shift the liability should make the repairs (the nuisance to other shoulders. And even if the being created by lack of repairs) and lessee, by some work, add to the nui- alterations desired, and save the landsance, but not by a separate, independ- lord harmless from damages, etc. ent work, but one used along with the Thus, it will be seen that in most cases instrument of nuisance let to him, the the question has been one of discovlessor is still liable, though the injury ering the intention of the landlord, came from both the work as it was

rather than the proximate cause of when leased and the additional nui

the injury. Strength is also added to sance coming from the addition made

the point here advanced, by the fact by the lessee. The injury is the com

that no distinction is made between mon fruit of the two, though lessor

cases in which the tenant merely neg. and lessee both contributed. How can

lects to prevent the quiescent nuiyou divide the injury,--especially in

sance from becoming an active one, such a case as this? Where the lessee

and cases like the reported case (LARcreates, originates an independent,

SON v. CALDER'S PARK Co. ante, 731), separate work, unauthorized by the

where the positive acts of the tenant lessor; the lessee is liable only. Where

are the immediate cause, if not the it becomes a nuisance only by the

proximate cause, of the injury, prolessee's act, and the landlord has not vided that those acts were contemcontributed, only the lessee is liable.

plated by the lessor when the lease was 21 Am. & Eng. Enc. Law, 2d ed. 721; made and possession given. 1 Jaggard, Torts, 225; 1 Kinkead, There are many cases in which the tenant's positive acts, not merely his its use would probably result in the neglect to act, in using leased prop- formation of ice upon the sidewalk, erty for the purpose for which it was and as there is nothing appearing in leased, and in the manner contem- the record which made it his duty to plated, turned the property or some remove from the sidewalk the obstrucpart thereof into an active, as distin- tion thus caused, it seems to be clear guished from the quiescent, nuisance, that nothing done by the landlord didoing injury to a third person, and rectly contributed to the injury which in which the landlord was held lia- the plaintiff sustained. Certainly, ble, without any reference being made under the circumstances, the mere to the doctrine of proximate cause as presence of the ditch upon his propbetween the acts of the lessor and erty was not the proximate cause of those of the lessees, among which are: the injury." The point might be Grady v. Wolsner (1871) 46 Ala. 381, stated in another way, i. e., the land7 Am. Rep. 593; Helwig v. Jordan lord may not have intended the tenant (1876) 53 Ind. 21, 21 Am. Rep. 189; to use the ditch in freezing weather, Jackman v. Arlington Mills (1883) 137 so that the tenant alone created and Mass. 277; Hudson County v. Wood- maintained the nuisance that caused cliff Land Improv. Co. (1907) 74 N. J. . the injury. The last sentence quoted L. 355, 65 Atl. 844; Fish v. Dodge is dictum that merely weakens the (1847) 4 Denio (N. Y.) 311, 47 Am. argument that it was written to Dec. 254; Pickard v. Collins (1856) 23 strengthen. Barb. (N. Y.) 444, etc.

As an illustration showing the deAnd the same rule is approved in

cisive point in the facts on which the cases in which the tenant merely omits

liability of the landlord will turn, a some duty which would have prevent

comparison between the reported case ed the quiescent nuisance from becom- (LARSON V. CALDER'S PARK Co. ante, ing active, no question of proximate 731) and another shooting-gallery case cause as between the acts of the land- (Leonard v. Hornellsville (1899) 41 lord and those of the tenant being App. Div. 106, 58 N. Y. Supp. 266, apraised. Bailey v. Dunaway (1911) 8

peal dismissed in (1901) 166 N. Y. Ga. App. 713, 70 S. E. 141; Beck v.

590, 59 N. E. 1125) will be helpful. Hanline Bros. (1913) 122 Md. 68, 89

The vital distinction between the Atl. 377; Maloney v. Hayes (1910) 206

two cases is that in the New York Mass. 1, 28 L.R.A.(N.S.) 200, 91 N.

case the premises could have been E. 911, 3 N. C. C. A. 137; Marston v.

used for a shooting gallery (the purPhipps (1911) 209 Mass. 552, 95 N. E.

pose for which they were leased) in 954; Isham v. Broderick (1903) 89

a way that would have caused no nuiMinn. 397, 95 N. W. 224, 14 Am. Neg.

sance, and there was nothing to indiRep. 112, etc.

cate the manner of use to the tenant. But in Gardner v. Rhodes (1902)

The tenant bought and put up a target 114 Ga. 929, 57 L.R.A. 749, 41 S. E.

from which bullets would rebound, 63, there is language used which indi

a steel target,--and placed it in a po

sition where its use was dangerous, cates that the court may have been

the landlord not knowing how the of the opinion that no recovery could be had from the landlord unless his

shooting gallery was constructed or acts were the proximate cause of the

operated. It is quite clear that the injury, but the decision is based upon

case did not come within the rule statthe finding that the landlord did not

ed above, for there could be no precontribute anything to the injury.

sumption that he intended the tenant The court said: “The connection

to construct a nuisance on the premof the landlord with the matter

ises. The landlord was held not liaterminates altogether at the point ble since he contributed nothing to where the ditch is made upon the

the creation or continuance of the nuipremises, and as he was in no way sance, but the question of proximate responsible for the acts of his ten- cause was not raised. In the LARSON ants in using the ditch at a time when CASE, the acts of the landlord had in

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dicated exactly how he expected the cause, since the axiom that the whole shooting gallery to be used, and the is greater than any of its parts is not injury was caused by its use in that easily refuted. The decision would be manner. He was held liable, as stat- much stronger if the court had held ed supra, upon this theory of nui- that, since the entire nuisance was sance. But the court proceeds to in- the proximate cause and the landlord quire further, and actually holds that was presumed to have intended its the landlord's acts were the proximate continuance, he was liable as a joint cause of the injury. The weakness of tort-feasor, unless he succeeded in rethe argument supporting this finding butting the presumption, regardless of is quite apparent; and such an argu- the question of whose acts were the ment can never be strong where the most vital in causing the injury. entire nuisance was the proximate

J. W. M.

HARRY SCHINE

v.
DAVID J. JOHNSON et al., Appts.

Connecticut Supreme Court of Errors - May 28, 1918.

(92 Conn. 590, 103 Atl. 974.)

Evidence - to vary indorsement of note.

1. Parol evidence is not admissible in an action on the note, to show that an unconditional indorsement of a promissory note was intended to be an indorsement without recourse, under the provisions of the Negotiable Instruments Act that, as between the immediate parties to the instrument, the delivery may be shown to be conditional.

[See note on this question beginning on page 764.] Bills and notes conditional delivery Contract conditional delivery. what is.

3. The conditional delivery of a writ2. The indorsement and delivery of a promissory note in satisfaction of an

ten instrument necessarily implies that outstanding note of the indorser is the delivery may become absolute and not a conditional delivery, within the the contract obligatory according to provision of the Negotiable Instru

its terms, in case the condition precements Act that, as between the immediate parties, the delivery may be

dent is performed or broken, as the shown to be conditional.

case may be. [See 3 R. C. L. 861.]

[See 10 R. C. L. 623.)

APPEAL by defendants from a judgment of the Court of Common Pleas for Fairfield County (Walsh, J.) in favor of plaintiff, in an action brought to recover an amount alleged to be due and unpaid on a note. No error. Statement by Beach, J.:

principal should become due and The note in suit was for $600 payable on demand. The complaint with interest at the rate of 5 per alleged that David J. Johnson incent, payable in semiannual instal- dorsed the note to the other defendments of $50 each to the order of ant, Clara L. Johnson, who indorsed the defendant David J. Johnson, and it to the plaintiff; that the semiancontained an agreement that, if any nual payment due June 1, 1914, was semiannual payment remained un- not paid when due, though demandpaid when due, the whole unpaid ed; that notice thereof was duly

Bills and notes

Contract

(92 Conn, 590, 103 Atl. 974.) given to the defendants; and that back by the defendants for cancelathere is now due the plaintiff on said tion; and the answer alleges that note $550, with interest. The an- the intent of the transaction was to swer alleges that, at the time the make the note available to the plainnote was indorsed to the plaintiff tiff at once, as an obligation of the the defendants were indebted to the makers. To that extent the delivery plaintiff on another note on which a was absolute and unconditional. balance of $450 was due and pay- Was there a conditional delivery able; that the plaintiff agreed, in of the instrument so consideration for the delivery of the far as the contract conditional denote in suit and other valuable con- of indorsement was

livery-what is. sideration, to accept the note in suit concerned? We think not. The and to look to the security for its conditional delivery payment, and not to hold the defend- of a written con- conditional

delivery. ants liable thereon.

tract In another

necessarily paragraph it is alleged that the de- implies that the delivery may befendants paid $75 in cash and in- come absolute and the contract obterest and delivered the note in suit ligatory, according to its terms, in to the plaintiff, upon the condition case the condition precedent is perthat the plaintiff should accept the formed or broken, as the case may same in satisfaction of the former be. Thus, in McFarland v. Sikes, note, and that he would not hold supra, the condition on which the the defendants liable on their in- note was delivered to the plaintiff's dorsements. The reply to this an- attorney was that if the defendant swer was a general denial. At the failed to appear upon a certain day trial the defendants offered parol the note was to become effective as evidence of the agreements and con

a note, according to its tenor. Here, ditions alleged in the answer, which however, the alleged condition is was objected to, ruled out, and ex

that the contract of indorsement. ceptions taken.

though absolute in form, was never

to become operative at all; and so it Messrs. John C. Chamberlain and

is evident that the defendants are Elbert O. Hull for appellants.

Mr. Thomas M. Cullinan for appel- seeking to attach a condition to the lee.

contract itself which is not therein Beach, J., delivered the opinion of expressed, and are not seeking to

attach the condition to the delivery che court:

of the contract. The Negotiable Instruments Act

Their real defense is that they provides that, as between the im

never contracted as written, and mediate parties to the instrument, that the indorsements, although ab“the delivery may be shown to have

solute in form, were intended by been conditional, or for a special both parties to be indorsements purpose only, and not for the pur

without recourse. Assuming that pose of transferring the property in

to be so, it is too well settled for the instrument." Gen. Stat. § 4186.

discussion that the contract which This was so before the act. McFar

the law implies from an uncondiland v. Sikes, 54 Conn. 250, 1 Am.

tional indorsement

Evidence-to St. Rep. 111, 7 Atl. 408; Trumbull

cannot be varied or vary indorseV. O'Hara, 71 Conn. 172, 177, 41 contradicted by paAtl. 546. In this case there is no rol evidence, in defense of an action question but what the delivery was on the note. Burns & S. Lumber Co. for the purpose of transferring the v. Doyle, 71 Conn. 742, 71 Am. St. property in the instrument, for the Rep. 235, 43 Atl. 483. If it is true, note in suit was given and received as claimed, that the plaintiff is in part payment of an outstanding fraudulently attempting to take adpromissory note, which was received vantage of a contract which neither the plaintiff nor the defendants in

ment of note.

NOTE. tended to enter into, the proper remedy is to appeal to a court of The decision in the reported case equity to have the contract re- (SCHINE V. JOHNSON, ante, 744) that formed by inserting the words, parol evidence is inadmissible to vary "without recourse," in the indorse- or explain the contract implied from ment.

the regular indorsement of a bill or There is no error.

note is in accord with the great weight In this opinion the other Judges

of authority, as shown in the note, concur.

post, 764.

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(- Okla. - 174 Pac. 505.) Bills and notes — limited indorsement.

1. In case a note has been indorsed by the payee for the purpose of being used as collateral, and afterwards, on the payment of the principal debt, the note is returned to the payee, and he sells and transfers the same to another, who afterwards brings suit thereon against the maker and the payee, it is competent to show the facts as to such indorsement, and that, as a part of the contract made and executed at the time of the sale and transfer, the liability of the payee as indorser was, by executed oral contract, limited so as to extend only as to a warranty against equities between the maker of the note and the payee.

[See note on this question beginning on page 764.] Pleading - special warranty of note. fects, infirmities, or equities so exist

2. A petition which sets forth a spe- ing. cial warranty made by the payee of a [See 3 R. C. L. 1162.] promissory note at the time of trans- Bills and notes waiver of notice. ferring the same, but does not allege 4. A provision in a promissory note a breach or failure of such warranty, waiving presentment for payment, nodoes not state a cause of action

tice of payment, protest, and notice against the payee.

of protest, is sufficient to relieve the - representations by payee.

holder of the note, who brings action 3. An allegation in the petition of against an indorser thereon, from plaintiff, in a suit on promissory notes pleading and proving notice of disagainst the maker thereof, in which it

honor. is sought also to enforce liability

[See 3 R. C. L. 1236.] against the payee who transferred Appeal – absence of assignment of such notes, that at the time of the error. sale and transfer the payee represent- 5. In the trial court judgment was ed to the plaintiff that there was abso- rendered against the defendant, who, lutely nothing wrong with the notes, as shown by the files in the office of and that there were no defects and the court clerk, duly filed motion for infirmities about them, or any equities new trial within three days from the existing between the payee and the rendition of the judgment. Aftermaker, does not state grounds for ac- wards the plaintiff filed motion to tion against the payee, unless there is strike the motion for new trial for the a further allegation setting out de- alleged reason that the files did not

Headnotes 1-5, by STEWART, C.

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