#### SMITHFIELD IMPROVEMENT COMPANY v. COLEY-BARDIN.

(Filed 11 October, 1911.)

1. Landlord and Tenant — Repairs to Leased Premises — Agreement.

Tlie landlord is not required to keep the leased premises in repair in tlie absence of any agreement between the parties to that effect.

2. Same — Implied Covenant.

A covenant on the part of the landlord is not implied, from the fact of a lease of a hotel, that he will keep the leased premises in repair or that they shall be fit for the purposes for which they are rented.

*2563. Landlord and Tenant — Lease—Hotel—Water Pipes — Plumbing— Damage to Lessee — Counterclaim.

A landlord is not liable to the tenant, in tbe absence of an express agreement, for damages caused by tbe inefficient working of tbe water pipes and plumbing system installed in a hotel, the leased premises, and in bis action for tbe rent, etc., such damages may not be successfully set up by tbe tenant as a counterclaim.

Appeal from Whedbee, J., at March Term, 1911, of JohN-STON.

Summary proceeding in ejectment. The question of possession was not at issue, as defendant had surrendered possession.

At the close of the evidence the court instructed the jury to return a verdict for the plaintiff for $163.50, $150 balance due as rent .and $13.50 amount due for pillows. It is admitted that is the sum due plaintiff by defendant for rent and towels.

The defendant offered certain evidence tending to establish a counterclaim, which was excluded, and defendant excepted.

F. H. Broolcs for plaintiff.

Abell & Ward for defendant.

Bbowkt, J.

Plaintiff leased by contract in writing to defendant -its hotel, including the waterworks and connections used exclusively to supply it with water.' This proceeding was brought to eject defendant and recover balance of rent due plaintiff. Defendant pleaded a counterclaim, viz., that under the rental contract between the plaintiff and the defendant, the plaintiff rented to the defendant the waterworks and all connections thereto belonging. That it was the duty of the plaintiff to keep said waterworks and connections in proper repair and in good condition, so that a supply of water could be had at all times for necessary use in said hotel. That on account of the carelessness and negligence of the plaintiff in not keeping said waterworks and connections in proper repair and in good condition, thereby cutting off the water supply necessary for use in the said hotel, and in the failure to furnish water necessary for the same, the defendant has been damaged. The defendant offered evidence tending to prove that the waterworks and pipes *257got out of order during ber tenancy, that plaintiff neglected to repair them and that defendant was damaged thereby. His Honor excluded the evidence upon the ground that it was defendant’s duty to repair the waterworks in the house during her tenancy, and not plaintiff’s.

We have examined the written lease with care, and are unable to find any covenant in it by which the landlord binds himself to keep the property or the waterworks during the lease in repair. Whether the tenant obligated to do it is immaterial.

Without express stipulation in a lease, the law implies a covenant of quiet enjoyment upon the part of the landlord, and if the tenant be rightfully evicted by another he may recover damages; and this covenant extends to water and sewerage connections existing at date of lease. Huggins v. Waters, 154 N. C., 444.

Hnder the civil law, in case of tenancies for short terms the landlord was under implied obligation, without special agreement, to keep the premises in repair. 4 Kent Com., 110; Felton v. Cincinnati, 95 Fed. Rep., 336; Viterbo v. Friedlander, 120 U. S., 707. But under the common law it is well settled that, in the absence of any agreement between the parties, the landlord was under no obligation to his tenant to keep the demised premises in repair.

'The common' law considers such a lease as the one in evidence as the grant of an estate for years, to which the lessee takes title. The lessee is bound to pay the stipulated rent, notwithstanding injury by flood, fire, or other external cause. It required a statute of the State to relieve the lessee where the property is destroyed by fire.

By the common law the lessor is under no implied covenant to rep'air, or even that the premises shall be fit for the purpose for which they are rented. 3 Kent Com., 465; Brown Leg. Max. (3 Ed.), 213-214; Fowler v. Batt, 6 Mass., 63; Doupe v. Genin, 45 N. Y., 119; 2 McAdam on Landlord and Tenant, sec. 383; 1 Taylor on Landlord and Tenant, sec. 327; Viterbo v. Friedlander, supra.

*258 Chancellor Kent states tbe distinction between tbe civil and common law as follows: “Tbe Roman law made some compensation to tbe lessee for tbe shortness of bis five-year lease, for it gave bim a claim upon tbe lessor for reimbursement for bis reasonable improvements. Tbe landlord was bound to repair, and tbe tenant was discharged from tbe rent if be was prevented from reaping and enjoying tbe crops by an extraordinary and unavoidable calamity, as tempests, fire, or enemies. In these respects tbe Roman lessee bad the advantage of tbe English tenant, for, if there be no agreement or statute applicable to tbe case, tbe English landlord is not bound to repair, or to allow tbe tenant for repairs made without bis authority; and tbe tenant is bound to pay tbe rent, and to repair at bis own expense, to avoid tbe charge of permissive waste.”

“Tbe rule of caveat emptor applies to leases,” says tbe Ency-clopaedia, “and tbe landlord is not even under an implied obligation to remedy defects in tbe demised premises existing at tbe time of tbe demise. It follows, therefore, in tbe absence of any agreement on tbe part of tbe landlord to repair, a tenant cannot recover from tbe landlord tbe cost of repairs made by bim, etc.” 18 Am. and Eng., 215.

In regard to waterworks, it has been held in New York that when water pipes are arranged for an entire building occupied by different tenants, it is tbe duty of tbe landlord to keep tbe pipes in repair, or the failure to repair may amount to a constructive evictment. Bank v. Newton, 76 N. Y., 616.

But tbe Massachusetts court bolds that a landlord is under no implied obligation to keep in repair water pipes used exclusively in carrying water to tbe part of tbe building demised to tbe tenant, and therefore is not liable to such tenant for leakage from such pipes. McKeon v. Cutter, 156 Mass., 296.

Uj)ob a review of tbe record we find

No .error.