518
FEDERAL REPOR'l:ER,
vol. 69.
while the defendant's bid was so far below that of plaintiff, as to the remaining single item as to make the aggregate of his bid $35,000, in round numbers, less than that of plaintiff. It is alleged that plaintiff was prepared to bid, and, but for the secret agreement, would have bid, for such work, at a figure some $40,000 less than that at which the contract was let. As to this, it is argued, in plaintiff's behalf, that he was under no obligation to bid upon said work, and might refrain from doing so, at his option. But when he seeks to recover for withholding such bid, it is another matter. The tendency of such a recovery 'Will be to encourage combinations among bidders, destroy competition, defeat the object the legislature had in view in requiring such work to be awarded upon bids, and greatly increase the public burdens. If there was nothing more in the case than an agreement not to bid, there could be no recovery under the contract based upon such a consideration. But when the parties presented themselves as competitors for the work, they were guilty of a fraud. The tendency of what was thus done was to cause the water committee to believe that the bid of defendant was a favorable one for the city. Moreover, plaintiff's pretended bid had the effect of a representation to the committee that, in plaintiff's opinion, the work could not be profitably done for less than a figure $35,000 higher than that bid by defendant, although, as a matter of fact, plaintiff believed such work could be done, and, except for the collusive agreement with defendant, would have offered to do it, for an amount $75,000 less than that at which the contract was let. Upon all the cases cited or to be found, and in any view of the case consistent with public policy and the principles of equity, there can be no relief in such a case. It is not necessary to discuss the minor questions raised by the exeeptions to parts of the answer. The third, ninth, tenth, and thirteenth exceptions, for impertinence and scandal, are allowed. All other exceptions are overruled. MOORE v. STELJES.
(Circuit Court, S. D. New York.
JUly 8, 1895.)
LANDI,ORD AND TENANT-DEFECTIVE PREMISES-IKJURY TO TENANT'S CHILD.
A landlord letting a house with a warranty of the safety and sulliciellcy of the ceiling is liable (not on the warranty itself, but on tile ground of negligence) for an injury to the tenant's infant child, resulting from the fall of the ceiling upon it.
This was an action at law by Rachell\foore against Martin Steljes to recover damages for personal injuries. Defendant demurs to the complaint. Edwin G. Davis, for plaintiff. Coleman & Donahue, for defendant. WHEELER, District Judge. According to the complaint, which is demurred to, the ceiling of premises hired of the defendant by the plaintiff's father for himself and family, including the plaintiff, an
MOORE V. STELJES.
519
infant,-the safety and sufficiency of which the defendant warranted, -through his negligence, fell upon the plaintiff, to her great injury. The demurrer has been a:r:gued for the defendant as if the suit was brought upon the warranty; but the hiring and warranty seem to be material only as showing that the plaintiff was rightfully on the premises, and that the negligence of the defendant continued to the time of, and caused, the injury, and did not become, after the hiring, the negligence of the father. The brist of the action is this continuing negligence, and. the question is whether the allegations of the complaint maintain it. This passage from Wood, LandI. & Ten. (13th Ed.) 735, is quoted in defendant's brief to show that they do not: "As regards the !lability of landlords to third persons, it may be taken as a general rule that the tenant, and not the landlord, is liable to third persons for any accident or injury occasioned to them by the premises being in a dangerous condition; and the only exceptions to the l'Ule appear to arise when the landlord has either (1) contracted with the tenant to repair, or (2) where he bas let the Dremises In ruinous condition, or (8) where be has expl'essly licensed the tenant to do acts amounting to a nuisance."
Warranting the safety and sufficiency of the ceiling would hold the defendant to the duty of maintaining it, as much as contracting for its repair, and bring this case within the first exception. A ceiling that will fall is ruinous, and the letting expressly assuming the risk would be a letting in a ruinous condition, and bring the case within the second exception. Payne v. Hogers, 2 H. BI. 349, ViUS an action against the owner of a house in the occupation of a tenant, for an injury owing to want. of repair of supports under the pavement. Objection was made that it should have been brought against the occupier, but the action was maintained because, although the tenant might be liable, the landlord would be liable in the first instance, and to save circuity of action. Shear. & R Neg. § 502, say: "Nor does the entire surrender of control over land to a lessee relieve the owner from liability to third persons fOl' defects which existed In it wben be parted with his control."
Want of privity between the plaintiff and defendant is most strenuously relied upon. It was, also, in Devlin v. Smith, 89 N. Y. 470, where one who built a scaffold under contract with a painter, defectively, was held liable, against this objection, to an employo of the painter, for injuries received in consequence of the defect. Rapallo, J., said: "The liability of the bUilder or manufacturer for such defects is, in general, only to the person with whom he contracted. But, notwithstanding this rule, liability to tbird parties has been held to exist when the defect IS such as to render the article in itself imminently dangerous, and serious mjury to any person using it Is a natural and probable consequence of its lise."
'rhe premises were let to the father for occupation by his family, including the plaintiff, and injury to her would be a natural consequence of the dangerous ceiling; and the warranty was made in view of this consequence. And, although the plaintiff could not maintain an action upon the warranty, it serves to fix the negligence , which caused the injury to her upon the defendant. Demurrer over· ruled.
520
FEDERAL REPORTER,
HART et al. v. MINCHEN et al. (Circuit Court, S. D. Iowa, C. D. January 2, 1895.) No. 3,576. GUARANTY-NoTIFICATION OF ACCEPTANCE-INTERPRETATION OF LETTER.
N., an Iowa merchant, having been refused credit by complainants in Chicago, procured from defendant a letter addressed to them, and offering to guaranty payment of such purchases as N. might make for his fall and winter trade. On the strength of this letter, plaintiffs sold N. goods, and, on the same day, wrote to defendant, acknowledging the receipt of his letter "guarantying whatever N. may purchase of us for his fall and winter stOCk," and saying, "His purchases up to this time amount to $3,390.50, which we are getting ready for shipment," Held that, in view of the situation of the parties, this letter was a valid notice of acceptance of the offer of guaranty, so as to make the guarantor liable for the amount of the purchases.
This was an action at law by Harry Hart, Max Hart, Joseph Schaffner, and Marcus Marx against William T. Minchen and others, on an alleged contract of guaranty. ' Stone & Dawson and Tenney, McConnell & Coffeen, for plaintiffs. A. U. Quint and L. W. Ross, for defendant Minchen. WOOLSON, District Judge. The following facts are found, as herein proven: Plaintiffs were in August, 1893, and have ever since been residents and citizens of the state of Illinois, and defendant Minchen at said date was, and now is, a resident and citizen of the state of Iowa. At said date, defendant Jonas Nichols was also a citizen and resident of the state of Iowa, and engaged in business as a clothing merchant in Carroll, Iowa. Prior thereto, for some years, .1linchen and Nichols had been in said clothing business, as copartners, at said Carroll. Nichols, on May 2, 1893, succeeded to this business. In Augnst, 1893, said Nichols was desirons of pnrchasing an additional stock of clothing from plaintiffs, who then com{losed the firm of Hart, Schaffner & Marx, with place of business at Chicago, Ill. Defendant Minchen at said date held a note, payable on demand, signed by said Nichols, for $19,000. Of this $19,000, $2,000 represented advances. Nichols had applied to plaintiffs for a purchase of goods, bnt, as he informed Minchen, his credo it had been "written down" so that he could not buy goods. Whereupon, on August 14, 1893, defendant Minchen wrote, and de· livered to defendant Nichols, the following: Hart, Schaffner & Marx, Chicago-Gentlemen: I will guaranty the payment of such purchases as Jonas Nichols may make of you, in the line of mer· chandise in [Which] you deal, for this fall and winter trade. Yours, respectfully, W. T. Minchen.
Nichols plaintiff's delivered sales and
took this letter, in person, to Chicago, and delivered it to firm, and on the credit of this letter said firm sold and to said Nichols goods amounting to $3,442.75. These deliveries extended from August 24, 1893, to September