is here necessary in order to take advantage of acts as a constructive eviction for the tenant altogether to abandon the premises. His action must have been caused by the acts which he asserts operated as an eviction," and the right to abandon for constructive eviction must be exercised promptly. But abandonment of the premises is not essential to seeking equitable relief.12 In the absence of a covenant to that effect, a landlord is under no obligation that the premises shall be tenantable at the time they are leased, or that they shall be made tenantable by repairs or abatement of supervening nuisances during the tenancy;13 and, as has been seen, 14 even if the landlord covenants to repair, a breach of the covenant will not excuse the tenant from the performance of his covenants; but if the landlord in violation of such a covenant permits the premises to become actually untenantable it is a constructive eviction, justifying the tenant in abandoning the premises, thereby terminating his liability for rent.15

11 Taylor v. Finnigan, 189 Mass. 568, 76 N. E. 203, 2 L. R. A. (N. S.) 973; Metropole Const. Co. v. Hartigan, 83 N. J. L. 409, 85 Atl. 313; Bowder v. Gillis, 132 Minn. 189, 156 N. W. 2; Edgerton v. Page, 26 N. Y. 281; Tham v. Carroll, 147 N. Y. App. Div. 229. As to the necessity of the abandonment being caused by the acts claimed to amount to an eviction, see Edwards v. Candy, 14 Hun, 596; Tham v. Carroll, 147 N. Y. App. Div. 229, 233.

12 Epstein v. Dunbar, 221 Mass. 579, 109 N. E. 730.

13 Hart v. Windsor, 12 M. & W. 68; Keates v. Cadogan, 10 C. B. 591; Gott v. Gandy, 2 E. & B. 845; Little Rock Ice Co. v. Consumers' Ice Co., 114 Ark. 532, 170 S. W. 241; Gately v. Campbell, 124 Cal. 520, 57 Pac. 567; Roehrs v. Timmons, 28 Ind. App. 578, 63 N. E. 481; Lewis v. Clark, 86 Md. 327, 37 Atl. 1035; Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322; Taylor v. Finnigan, 189 Mass. 568, 573, 76 N. E. 203, 2 L. R. A. (N. S.) 973; Mills v. Swanton, 222 Mass. 557, 111 N. E. 384; Petz v. Voigt Brewery

Co., 116 Mich. 418, 74 N. W. 651, 72 Am. St. Rep. 531; Griffin v. Freeborn, 181 Mo. App. 203, 168 S. W. 219; Rheims v. Dolley, 93 N. Y. Misc. 500, 157 N. Y. S. 213; Wood v. Carson, 257 Pa. 522, 101 Atl. 811. See also Pratt v. Grafton Elec. Co., 182 Mass. 180, 65 N. E. 63. The law is otherwise in Louisiana, C. C. Art. 2692-2694; and in New York, though the landlord does not warrant tenantable condition, by statute the tenant may surrender the premises without liability if they become untenantable by physical destruction or deterioration. May v. Gillis, 169 N. Y. 330, 62 N. E. 385; cf. FloydJones v. Schaan, 129 N. Y. App. Div. 82, 113 N. Y. S. 472. The question of a landlord's liability in tort for knowingly or negligently leasing dangerous property is not here under discussion.

14 Supra, § 890.

15 Lewis v. Chisholm, 68 Ga. 40; Bissell v. Lloyd, 100 Ill. 214; Dolph v. Barry, 165 Mo. App. 659, 148 S. W. 196; Sheary v. Adams, 18 Hun, 181 (statutory); McCardell v. Williams,

Similarly it is a constructive eviction to fail to furnish heat, 16 or water, 17 in accordance with an obligation imposed by the lease. Permitting adjoining property of the landlord to be used for purposes inconsistent with the purpose for which the property in question was rented, 18 or permitting such adjoining property to be used for immoral purposes, 19 or fostering any continuing nuisance, 20 refusing to allow a new key to be made to replace one lost by the tenant,21 or in any way substantially depriving the tenant of the enjoyment of the leased premises in violation of a duty assumed by the landlord, amounts to an eviction.22 But building on adjoining land of the landlord an ordinary structure with no purpose to evict the tenant does not amount to eviction though it renders unfit for use part of the leased premises. 23 In all the cases thus far supposed, wherever there has been held constructive eviction there has been a violation of duty on the part of the landlord which would justify the tenant not only in abandoning the premises but in suing for breach of the landlord's covenant of quiet enjoyment; but there seems a disposition to regard the lease of an apartment or flat as imposing liabilities upon the parties somewhat different from those imposed by a lease of a whole building. Where "an intolerable condition which the tenant neither causes nor can remedy" arises, there has been held in New York to be con

19 R. I. 701, 36 Atl. 719. But see Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322.

16 Morse v. Tochterman, 21 Cal. App. 726, 132 Pac. 1055; Bass v. Rollins, 63 Minn. 226, 65 N. W. 348; Berlinger v. Macdonald, 133 N. Y. S. 522, 149 N. Y. App. Div. 5; Russell v. Olson, 22 N. Dak. 410, 133 N. W. 1030, 37 L. R. A. (N. S.) 1217; McSorley v. Allen, 36 Pa. Super. 271.

17 Boston Veterinary Hospital v. Kiley, 219 Mass. 533, 107 N. E. 426. 18 Wade v. Herndl, 127 Wis. 544, 107

N. W. 4, 5 L. R. A. (N. S.) 855.

19 Weiler v. Pancoast, 71 N. J. L. 414, 58 Atl. 1084; Wolf v. Eppenstein, 71 Or. 1, 140 Pac. 751.

20 York v. Steward, 21 Mont. 515,

55 Pac. 29, 43 L. R. A. 125; Barnard Realty Co. v. Bonwit, 155 N. Y. App. Div. 182, 139 N. Y. S. 1050.

21 Smith v. Tennyson, 219 Mass. 508, 107 N. E. 423.

22 Grabenhorst v. Nicodemus, 42 Md. 236; Alger v. Kennedy, 49 Vt. 109, 24 Am. Rep. 117.

23 Royce v. Guggenheim, 106 Mass. 201, 8 Am. Rep. 322. For the same reason, where the tenant knows that the leased land is subject to the servitude of a railroad viaduct, the fact that he is deprived for part of the term of the use of part of the premises by repairs on the viaduct, cannot be regarded as an eviction. Friend v. Oil Well Supply Co., 179 Pa. 290, 36 Atl. 219.

structive eviction from an apartment irrespective of the landlord's causation of the condition or liability in damages for it.24 But this would not be universally admitted. 25

In the lease of a furnished house for a short period of time also, it is held in England and Massachusetts that a warranty is implied that the premises shall be tenantable at the time the tenancy is to begin. 26 There is no implied warranty, however, even in the case of a furnished house that the premises will continue fit for habitation during the tenancy. 27 As has been seen 28 in an executory contract to take a lease the obligation is dependent on the landlord's promise to repair. So the obligation of one who has agreed to purchase is conditional on the performance of a promise to put the premises in repair; 29 since in the nature of the case the promised repairs were to

24 In Barnard Realty Co. v. Bonwit, 155 N. Y. App. Div. 182, 139 N. Y. S. 1050, a plague of rats was held to justify the tenant in leaving without liability for rent. See also Madden v. Bullock, 115 N. Y. S. 723; Streep v. Simpson, 80 N. Y. Misc. 666, 141 N. Y. S. 863. In the case first stated, the court said: "Very large numbers of people live in tenement houses, apartment houses and apartment hotels in this city. Such tenants have, and can have, control only of the inside of their own limited demised premises. Conditions unknown to the ancient common law are thus created. This requires clasticity in the application of the principles thereof." But see Pomeroy v. Tyler, 9 N. Y. St. Rep. 514; Jacobs v. Morand, 59 N. Y. Misc. 200, 110 N. Y. S. 208. It is doubtless essential for the application of the suggested rule that the nuisance shall be one which the tenant cannot remedy. The landlord is not liable in damages for the consequences of supervening circumstances making even a furnished apartment untenantable. Sarson v. Roberts, [1895] 2 Q. B. 395.

25 In Hopkins v. Murphy (Mass., 1919), 124 N. E. 252, an apartment became infested with cockroaches

after two years of the lease had run. The landlord on request endeavored to abate the trouble, but failed to do so. Whereupon the tenants left the premises. It was held that they were liable for rent, the court saying: "There is nothing to indicate [the landlord], was responsible for the presence of the insects or that he failed in any duty which he owed to the defendant."

26 Smith v. Marrable, 11 M. & W. 5; Wilson v. Finch Hatton, 2 Exch. Div. 336; Ingalls v. Hobbs, 156 Mass. 348, 31 N. E. 286, 16 L. R. A. 51. But see Edwards v. McLean, 122 N. Y. 302, 25 N. E. 483, where a lessor was held not responsible for infection arising in a furnished house after the execution of a lease for four months, though before the beginning of the term; and Fisher v. Lighthall, 4 Mackey, 82, 54 Am. Rep. 258; Murray v. Albertson, 50 N. J. L. 167, 13 Atl. 394, 7 Am. St. Rep. 787, where it was held broadly that there was no implied obligation that a furnished house would be habitable.

27 Sarson v. Roberts, [1895] 2 Q. B. 395.

28 Supra, § 890.

29 Tripp v. Smith, 180 Mass. 122, 61 N. E. 804. Cf. Shenners v. Pritchard, Wis. 287, 80 N. W. 458.

precede the lease or purchase, and the mutual performances of leasing or selling a repaired house were intended as an exchange of one for the other.

§ 893. Conditions implied in fact.

Frequently a covenant or promise cannot be performed in the nature of things except upon or after the happening of a certain event. Conceivably the meaning of such an obligation may be (1) that the promisor undertakes that the necessary event shall happen; (2) that the promisee undertakes that it shall happen; or, (3), that though neither party is under an obligation that the event shall happen, the promisor shall be excused if it does not happen. It is a question of construction which of these three meanings is to be given to a particular contract. The necessary starting point of the law is that the promisor must fulfil his promise according to its terms unless some legal excuse can be found. When A contracts to sell Blackacre, if his wife's signature is necessary in order to enable him to convey a good title he binds himself to procure that signature. The nature of the case may be such, however, in view of mercantile custom, that a reasonable person would not understand that the promisor undertook that the necessary event should happen. Thus where A promises to sell goods at a valuation fixed by a third person, he does not undertake the obligation of making the valuer fix a price.30 A promise to perform building or construction work requiring plans is qualified by a condition that the owner shall furnish the necessary plans.31

Where the necessary event is peculiarly within the power of the promisee, the obligation of the promisor is conditional on the promisee's bringing the event to pass; and if the contract is bilateral there is an implied obligation on the part of the promisee that he will bring the event to pass. Thus wherever the coöperation of the promisee is necessary for

*See supra, §§ 800, 801.

"In Barnum v. Williams, 115 N. Y. App. Div. 694, 102 N. Y. S. 874, the court held that when the owner failed to furnish plans of the work, so as to enable the contractor to perform

within the time set, the contractor was justified in abandoning the contract and might recover on a quantum meruit for the work done up to that time.

the performance of the promise, there is a condition implied in fact that the coöperation will be given, and if the contract is bilateral there is an obligation to give it. Where, for instance, a seller contracts to deliver goods to a buyer he cannot do so unless the buyer will receive them, and he is not only freed from his own obligation, but acquires a right of action if the buyer refuses, to receive them. So an employee's promise is impliedly conditional on the coöperation of the employer in the discharge of the work contracted for. A promise to ship a cargo of coal at a certain port is qualified by a condition that the promisee shall furnish the ship.32 A promise to lay out £100 under the direction of a competent surveyor named by the plaintiff, requires the appointment of such a surveyor as a condition of the promisor's liability.33 A promise to pay $4,000 in paper to be manufactured by a secret process which the promisee had agreed to teach the promisor, contains the necessary condition that the instruction shall first be given.34

It is not essential that performance of a promise shall otherwise be actually impossible in order to justify the implication in fact of conditions. Such conditions are similar in their nature to express conditions, except that the parties have expressed their intentions not in words but in the nature of their undertakings. Wherever, therefore, there is a necessary inference that an act must be done by the promisee before the promisor's performance is due, a condition will be implied. Sometimes the implication is both that the thing shall be done by the promisee and also that it shall be done before the promisor shall be liable; sometimes the promisee's obligation to do the thing in question is expressed, and the only thing

32 Armitage v. Insole, 14 Q. B. 728, cited and followed in Davis v. Columbia Coal Mining Co., 170 Mass. 391, 49 N. E. 629; Hughes v. Knott, 138 N. C. 105, 50 S. E. 586. See also Sutherland v. Allhusen, 14 L. T. 666; Stanton v. Austin, L. R. 7 C. P. 651; Stuart v. Lumber Co., 66 Or. 546, 132 Pac. 1; Dwight v. Eckert, 117 Pa. St. 490, 12 Atl. 32. In Pinkham v. Haynes, 103 Me. 112, 68 Atl. 642, the sellers agreed to deliver potatoes on board

cars to be furnished by the buyer "on or before" a certain date. It was held that the sellers were entitled to such notice of the arrival of the cars as would enable them with reasonable diligence to load the potatoes, and not having received such notice were freed from their obligation to deliver any potatoes.

83 Coombe v. Greene, 11 M. & W.

480.

34 Cadwell v. Blake, 6 Gray, 402.