CHAPTER XI.
CHARMS OF FURNISHED APARTMENTS.
“De gustibus non est disputandum,” was originally observed by a man of sense, however many blockheads may since have repeated it; and as my tastes in the matter of comestibles did not harmonize with those of the several respectable boarding-house keepers beneath whose roofs we successively took shelter, it was settled in a committee of the whole family that Mrs. Lawyer and myself should take furnished apartments in a genteel street, or a furnished house—that Mrs. L. should be appointed Commissary-General, with one Bridget or Biddy O’Callaghan as Deputy-Acting-Assistant Commissary-General under her, while I should continue to hold the responsible post of Paymaster-General to the entire force.
In due time, after a considerable reduction in our stock of the virtue of patience and of the thickness of the soles of our boots, a suitable suite of rooms, furnished in a style agreeable to our taste, in a locality not objectionable and at a rate proportionate to the depth or rather shallowness of my pocket, was discovered and all necessary arrangements made with the landlord.
To avoid all possibility of future disputations with the owner, (and especially as a contract to let lodgings is a contract concerning an interest in land within the meaning of that celebrated troublesome statute passed in the twenty-ninth year of his rascally majesty, Charles II, and entitled “an act for the prevention of frauds and perjuries,” and so must be in writing,[414]) determined to follow the good advice of Mr. Woodfall, and have our agreement reduced to black and white. My instructions to my clerk in preparing the document were, to specify the amount of rent, the time of entry, the length of notice to quit required and such other particulars as the nature of the case rendered requisite, and to have a list of the goods and chattels in the apartments affixed.
Alas, I found the truth of the old adage, that a lawyer who acts for himself has a —— well, not a Solomon—for his client. An unexpected event, however, saved me. The very evening before we were to enter into our new abode a bailiff, on behalf of the real owner, for my acquaintance had but a lease of the place, visited the house and seized a part of the furniture for rent overdue; luckily none of my personal belongings had been taken in—if there had been any of them they, too, would have been liable to distress for the rent. I had stupidly neglected to inquire whether the taxes or the rent of the house were paid up, and whether they were likely to be kept so.[415] Of course I knew that if I had at that particular period of my existence chanced to have been living in New England, or in New York State, or in some of the other States of the Union, I could not have been troubled if in that house, as the power of distress exists in those places no longer;[416] but we were in a State in which it is still retained, or at least was then.
When I told my wife of the narrow escape we had had she asked me if I had ever made inquiries as to whether the landlords of the hotels at which we stayed were in arrear for rent.
“No,” I replied; “the rule is different in respect to hotels.”
“Why?”
“For the benefit of trade; otherwise business could not be carried on at all.”
“But what would we have had there except my cat and bird, our clothes, and your books?” urged Mrs. L.
“Nothing more would have been wanted.”
“Could they have taken our clothes? I thought all such things were exempt.”
“Generally speaking, they are from seizure for debt; but not from distress for rent, unless they are in actual use at the time. In 1796 Mr. Baynes, who had furnished lodgings at half a guinea a week, was two months in arrear, and a bailiff appeared upon the scene and took his wearing apparel and that of Mrs. B., although part of it was actually in the wash-tub at the time; and Lord Kenyon said it was all right.[417] The same judge decided in another case that a landlord could legally take the clothes belonging to a man’s wife and children, while they—the ‘clothes screens,’ as Carlyle calls them—not the clothes—were in bed, although the bipeds intended to put them on in the morning, and had been daily in the habit of wearing them, on the ground that they were not in actual use.[418] But Kenyon, my dear, sometimes said absurd things. For instance, once, when indignant at the delay of an attorney, he exclaimed, wrathfully, ‘This is the last hair in the tail of procrastination.’”
“The law seems very hard. Why, that poor woman would have to stay in bed. But talking of tails, could they have taken my cat—my beautiful pussy?” said Mrs. Lawyer, looking over where
The cat’s dark silhouette on the wall,
A couchant tiger’s seemed to fall.
“Well—ah—in Coke upon Littleton it is said, no; but the reason given is that cats are things in which no man can have an absolute and valuable property; and that reason might not be applicable to the case of a costly Angora like yours, and you know, cessante ratione cessat et ipsa lex; but your bird might have been taken.”[419]
“It seems strange that the landlord can take the property of other people to pay his tenant’s debts.”
“It does; and in many parts of this country only the goods of the debtor can be taken,[420] and the judges are generally inclined to deliver the lodger from the claws of the landlord; and so it has been held that while the goods of an assignee of the tenant are liable, those of a mere under-tenant are not;[421] and in England, of late years, an act has been passed for the protection of the lodger’s goods from the claims of the landlord for rent due him by his immediate tenant.”[422]
“But if our things had been taken to pay the rent, could we not have made the other boarders contribute their share?”
“No, I am afraid not,”[423] I answered.
* * * * * *
Our intended rooms being now somewhat denuded of their necessary furnishings we arranged with our landlord-about-to-be to send in all necessary articles within a reasonable time. Unfortunately, however, this new arrangement was not embodied in our written agreement; so I found out—when too late—that our landlord (a man of the eel kind) was not bound to put in the furniture. If it had been in writing, it would then have formed an inseparable part of the contract, and the man could not have obtained his rent until he had done his duty.[424]
We had scarcely got settled in our new quarters before we discovered that our rose possessed a thorn or two. The morning after our arrival, we were honored with the visit of a choleric gent, who informed us that he occupied the rooms on the flat below and that our water pipes had leaked through and damaged irreparably some of his property. I am thankful, however, to say that I was able to point out to him that the defects in the pipe could not have been detected without examination; that as we did not know of them, and had not been guilty of any negligence, we were not liable for the damage which he had unfortunately sustained, there being no obligation upon us to keep—at our peril—the water in the pipe.[425]
We next had trouble about a stovepipe which had to pass through another person’s room. When we began to put it up our neighbor threatened to take it down and stop up the hole; but knowing that as there had been a pipe through his room before the surly fellow moved in he only had the room subject to the easement of the stovepipe and hole,[426] I remained firm and steadfast, and finally won a way for the obnoxious, black, cylindrical smoke-conductor, and we hoped to hear the kettle sing merrily, and the pots bubble, and spirt, and boil in peace, if not in quietude.
But our triumph was not for long. Barely was the stove in full blast when the boiler attached exploded with a terrific uproar. Considerable damage was done; my wife was clamorous that I should at once interview the landlord, especially as we thought that the accident could not have happened had there been a safety-valve to the boiler; but I said that it would be useless to talk about it unless we could prove that he knew of the defect, or had reason to suspect it, or that damage was to be apprehended from the use of the boiler for the purpose for which it was intended;[427] although on one occasion the courts held a landlord liable for injuries arising from the explosion of gas, caused by the pipes in the tenant’s room not having been properly secured.[428]
In the afternoon it began to rain in the style commonly called “cats and dogs,” or “pitchforks,” and soon we heard pit—pit—pit, patter—patter—patter, spit—spit—spit, spatter—spatter—spatter, sounding nearer than the dripping outside would seem to warrant, and on investigation we found that the rain was coming through the roof and dropping down in ugly splashes upon one of our most handsome and costly volumes.
“Can we make the landlord pay for the damage done by his old leaky roof?” asked my wife, as with her best cambric handkerchief she tried to swab up the wet.
“I fear me not. I remember Baron Martin saying that one who takes a floor in a house must be held to take the premises as they are, and cannot complain that the house was not constructed differently. This storm may have blown off some shingles, and then, even if our landlord is bound to use reasonable care in keeping the roof secure, he cannot be held responsible for what no reasonable care and vigilance could have provided against. He cannot certainly be considered guilty of negligence if he has caused the roof to be examined periodically, and if it was all secure the last time it was looked at.[429] Still, in New York State it was decided that where a landlord, who himself occupied an upper flat, allowed liquids to leak through into his tenants’ rooms, he was liable.”[430]
“I should think, indeed, that a man should keep his house in repair, so that his tenants’ goods are not ruined,” indignantly said Mrs. Lawyer.
“You may say that, but the law says quite the reverse. It is perfectly clear that a landlord is not bound to do any repairs, however necessary they may be, except such as he personally agrees to do. The law will not imply any contract of that sort on his part. That was decided in a case where large gaps opened in the main walls, and it took several hours of hard pumping daily to keep the water out of the basement.[431]
“In New Hampshire, I admit, it has been held that where a landlord negligently constructs his building, or negligently allows it to continue out of repair, he is liable for injuries to his tenants;[432] and in New York the rule is said to be that when buildings are in good repair when leased and afterward become ruinous and dangerous, the owner is not responsible unless he has expressly agreed to repair.”[433]
“Surely, then, one has not to pay rent when a house is in such a wretched state? I suppose we are not bound to stay here.”
“Yes, to both your queries. The only cases in which a tenant has been permitted to withdraw from his tenancy and refuse payment of rent are where there has been some error or fraudulent misdescription of the premises, or where they have been found to be uninhabitable in consequence of the wrongful act or default of the landlord himself;[434] and it is not perfectly clear that he can do so even then.[435] But I must go out for the present, my dear. Fare thee well.”
In the hall down stairs I met Mr. Screwhard, our landlord, a gentleman who, from his personal appearance, would have accumulated a large fortune as an undertaker; for from his countenance you could no more have coaxed a smile than you could have out of a poker. As I was bidding him a hurried “Good morning,” he placed his body, so long, so lean, and so straight that you might have taken it for a telegraph pole in consumption, before me, and said, in tones which would have well become the ghost in Hamlet—
“You must be in by nine o’clock, sir; we lock the front door then.”
“Gammon!” said I; “you will have to unlock it, then, to let me in; for when you rented me the rooms you impliedly granted all that was necessary for their free use and full enjoyment, such as the use of the hall and stairs whenever required, and not only when you choose.”[436]
“I will yield to your wishes for this night only,” said Screwhard, in a voice as solemn as if he were about to be cremated; “but mind, rap with your knuckles on the door; in time your wife will hear and can let you in, for I must be allowed to have unbroken slumbers; my health demands that most imperatively.”
“Stuff and nonsense!” I replied; “I have a right to use the bell and the knocker, as nothing was said to the contrary before;[437] and I shall use them.”
And impatient with the old fellow I passed on, saying to myself: “The man must be a fool. An action will lie against him if he attempts to interfere with our use of the necessary adjuncts of his furnished apartments. To be sure if we were bad tenants, he might, in mitigation of damages, show that he acted so to make us leave.[438] But we have not been long enough for that.”
Apollo stayed not his fiery steeds in their downward career towards the happy isles of the west that day, and Phœbus’ sickly-looking sister held sway in high heaven when I again reached the door of my new domicile. With me was Tom Jones, who was anxious to see the rooms. Mrs. Lawyer received us in the parlor with a face full of disgust, and after the interchange of a word or two with Tom, calling me aside, made the horrid announcement that our bedrooms were fully occupied by animals of a small size, broad for their length, darkish in color, scented, anthropophagous, and designated by the same letters as very dark drawing pencils.
I disclosed the fact to T. J., who, being somewhat of a naturalist, might, I thought, be able to prescribe some cure for this new found evil. He at once exclaimed:
“I tell you what, old fellow, some scientific folks say that these creatures always retire from public life to their own quarters about midnight. Test the point. You tumble into bed at once, and I will endeavor to entertain Mrs. Lawyer until twelve, and will call in the morning to hear the result of the experiment.”
“You’re very kind, I am sure. But I am always willing to share things equally with my wife; besides, when two are in bed the creepers lose time in deciding which to bite, so one can get occasional naps. To-morrow we will quit,” I replied.
“But can you give up your lodgings in that summary manner?”
“Long since it was decided that where a man rents ready furnished houses or lodgings and they are infested by bugs, the tenant may leave without paying rent. Baron Parke, in giving judgment, said that the authorities appeared fully to warrant the position that if the demised premises are encumbered with a nuisance of so serious a nature that no person can reasonably be expected to live in them, the tenant is at liberty to throw them up. And he said that this was so because of the implied condition that the landlord undertakes to rent the place in an habitable state. Lord Abinger, in the same case, went even further, and gave it as his opinion that no authorities were wanted to establish the point, and that the case was one which common sense alone enabled them to decide. A man, he remarked, who lets a ready furnished house, surely does so under an implied condition, or obligation, that the house is in a fit state to be inhabited. His lordship had no doubt whatever on the subject, and thought that tenants under such circumstances were fully justified in leaving.”[439]
“But have not other equally learned judges had very grave doubts upon the subject?” queried Jones.
“Well, I must confess that later cases have somewhat shaken the authority of the one I have been referring to, and it has been held that there is no implied warranty in a lease of a house, or of land, that it is or shall be reasonably fit for habitation, occupation, or cultivation, and that there is no contract, still less any condition, implied by law on the demise of real property only that it is fit for the purpose for which it is let.”[440]
“Does not that put an extinguisher on the authority you cited?” said Jones.
“No; in some of these latter decisions the case of a ready furnished house is expressly distinguished upon the ground that the letting of such a house is a contract of a mixed nature, being in fact a bargain for a house and furniture, which, of necessity, must be such as are fit for the purpose for which they are to be used. Abinger was particularly strong on the point. He said that ‘if a party contract for the lease of a house ready furnished, it is to be furnished in a proper manner, and so as to be fit for immediate occupation. Suppose,’ said he, ‘it turn out that there is not a bed in the house; surely the party is not bound to occupy it or continue in it. So, also, in the case of a house infected with vermin; if bugs be found in the bed, even after entering into possession, the lodger or occupier is not bound to stay in the house. Suppose again,’ he continued, ‘the tenant discover that there are not sufficient chairs in the house, or that they are not of a sort fit for use: he may give up possession.’[441] And so late as April of the year of grace 1877, Lord C. B. Kelly said that he was of the opinion, both on authority and on general principles of law, that there is an implied condition that a furnished house shall be in a good and tenantable state and reasonably fit for human occupation from the very day on which the tenancy is dated to begin, and that where such a house is in such a condition that there is either great discomfort or danger to health in entering and dwelling in it, then the intending tenant is entitled to repudiate the contract altogether.”[442]
“Well, that is strong, I am sure.”
“Abinger held that the letting of the goods and chattels, as well as the house, implies that the party who lets it so furnished is under an obligation to supply the other contracting party with whatever goods and chattels may be fit for the use and occupation of such a house according to its particular description and suitable in every respect. And Judge Shaw, of Massachusetts, says that in the case of furnished rooms in a lodging house, let for a particular season, a warranty may be implied that they are suitably fitted for such use.”[443]
“I should think,” said Jones, “that a would be tenant ought to go and inspect the premises for himself.”
“If he has an opportunity of doing so it might, perhaps, make a difference, but if he takes it upon the faith of its being properly furnished, common sense and common justice concur in the conclusion that the owner is bound to let it in an habitable state. So saith the Lord Chief Baron.”[444]
“I believe that it has been held in this country that the existence of a noxious smell in the house did not authorize the tenant’s leaving.”[445]
“Indeed. My lady, the Dowager Countess of Winchelsea, agreed to rent a furnished house in Wilton Crescent, London, for three months of the season of 1875 for the sum of 450 guineas. When her ladyship arrived with her servants and personal luggage, she perceived an unpleasant smell in the house, and declining to occupy it, had her horses taken out of the stable. On investigation, it was found that the drainage was in a very bad state, rendering the house quite unfit for occupation. In three weeks’ time, however, matters were put right, but her ladyship refused to go back or to pay rent. A suit was brought, in which the whole court unanimously held that the state of the drains entitled the Countess to rescind the bargain and to refuse to pay rent.[446] Abinger thought that if a tenant, on entering his lodgings, found out that the previous occupier had left because some one had recently died in them of the plague or scarlet fever, he would not be compelled to remain.[447] And in Massachusetts it was decided that a tenant who caught small-pox through no fault of his own, but because the owner wilfully neglected to inform him that the house was infected with that disease, might recover damages from the landlord.”[448]
Just then a slight movement on the part of Jones made the chair on which he was perched creak, crack, stretch out its legs, and let him down. As he was hastily apologizing for the damage, I remarked:
“Don’t trouble yourself, the occupier of furnished apartments is not responsible for deterioration by ordinary wear or tear in the reasonable use of the goods of the landlord.”[449]
“I’ll go now, at all events, as I am up,” said our friend, as he seized his hat and made his adieux.
Quære, was that a white handkerchief protruding slightly from his pistol pocket? Indispensables are tighter now-a-days than they used to be.