There is an implied warranty upon an executory sale of merchandise that the property is in a merchantable condition, and upon the sale of a chattel by the manufacturer thereof, that the chattel is St and suitable for the purpose for which it was intended and is purchased,- and upon the sale of provisions for consumption, that they are wholesome and proper for use as food; but upon the demise of real estate, there are no such implied warranties. It is a universal rule, to which no exception can be found in any case now regarded as authority, that upon the demise of real estate there is no implied warranty that the property is fit for occupation, or suitable for the use or purpose for which it is hired. The only implied warranty in such case is one for quiet enjoyment. In Jaffe v. Harteau (56 N. Y. 398) it was held, as stated in the head-note, that “ a lessor of buildings, in the absence of fraud or any agreement to that effect, is not liable to the lessee or others lawfully upon the premises for their condition, or that they are tenantable and maybe safely and conveniently used for the purposes for which they are apparently intended.” Judge Geover, writing the opinion, said: “ There is no reason for *248holding the lessor, in the absence of any agreement or fraud, liable to the tenant for the present or future condition of the premises that would not be equally applicable to a similar liability sought to be imposed by a grantee in fee upon his grantor.” In Carson v. Godley (26 Penn. St. 111), Woodward, J., said that there was a time when the English courts acted on the principle that it is an implied condition of every lease that the property is reasonably fit for the purpose for which it is let, but that those courts had receded from that rule, and now held that on the demise of land there is no implied obligation on the part of the lessor that it is fit for the purpose for which it is taken, nor in the lease of a house, that it is at the time of the demise, or shall be at the commencement of .the term, in a reasonably fit state and condition for habitation; and he cited for the English rule the case of Sutton v. Temple (12 M. & W. 52), which is ample authority for what he said. In Francis v. Cockrell (L. R., 5 Q. B. 501), Keller, C. B., said that there was no implied undertaking by the lessor that the demised real estate “ shall be reasonably fit, or fit at all, for the purpose for which it is let, that is, for the purpose of habitation. There is really no analogy at all between the case of a lessor and lessee of a house and the case of one who contracts for the supply of a carriage, or for the supply of a seat in a stand upon a race-course, or for the safe passage over a railway bridge. In the case of a lessor and lessee of a house, both parties, before the lease is granted and accepted, ascertain for themselves the condition of the premises, and they then enter into such express covenants as they may think fit for the repair of the premises, or for any other purpose incidental to the enjoyment of the premises.” In Thompson on Negligence, 323, the learned author, citing many cases, says that in the absence of fraud or deceit, “ there is no implied covenant that the demised premises are fit for occupation or the particular use which the tenant intends to make of them.”
Therefore, if any responsibility in this case attaches to the defendant, it cannot be based upon any contract obligation, but must rest entirely upon its delictum. If a landlord lets premises and agrees to keep them in repair, and he fails to do so, *249in consequence of which any one lawfully upon the premises suffers injury, he is responsible for his own negligence to the party injured. If he demises premises knowing that they are dangerous and unfit for the use for which they are hired, and fails to disclose their condition, he is guilty of negligence which will in many cases impose responsibility upon him. If he creates a nuisance upon his premises, and then demises them, he remains liable for the consequences of the nuisance as the creator thereof, and his tenant is also liable for the continuance of the same nuisance. But where the landlord has created no nuisance, and is guilty of no willful wrong or fraud or culpable negligence, no case can be found imposing any liability upon him for any injury suffered by any person occupying or going upon the premises during the term of the demise; and there is no distinction stated in any authority between cases of a demise of dwelling-houses and of buildings to be used for public purposes. The responsibility of the landlord is the same in all cases. If guilty of negligence or other delictum which leads directly to the accident and wrong complained of, he is hable; if not so guilty, no liability attaches to him. If he lets a building for a warehouse, knowing that it is so weak and imperfectly constructed that the floors will break down from the weight necessarily to be placed upon them, his negligence imposes liability npon him for injury to the person or property of any one who may lawfully be upon the premises using them for the purposes for which they were demised. If one builds a house for' public amusements or entertainments, and lets it for those purposes, knowing that it is so imperfectly and carelessly built that it is hable to go to pieces in the ordinary use for which it was designed, he is liable to the persons injured through his carelessness. And this rule of responsibility goes far enough for the protection of lessees and of the public generally. It is but a just and reasonable application of the maxim, sic utere tuo ut alienum non ■ laedas. It imposes liability upon the landlord for his delictum, and the tenant is also liable, not only for his negligence, but also upon the authority of the case of Francis v. Cockrell, by virtue of an implied contract which he makes with all the persons whom, *250for a compensation, he invites or induces to enter his building to witness public entertainments given therein by him or under his supervision. A rule which would place a greater responsibility upon a grantor or upon a landlord while out of possession and deprived of the control of his premises would, as stated in many cases, lead to much injustice, embarrassment and inconvenience. There is no case which holds that the negligence of a landlord is to be inferred simply from the fact that a structure which he lets breaks down. . It may break down under such circumstances that the inference of negligence is irresistible and may properly be drawn; but the facts must show that he knew, or had reason to know, that the structure was dangerously weak and imperfect. In Walden v. Finch (70 Penn. St. 460), in an action for an injury to property caused by the falling of a storehouse, the court said: “ The principle appears to be this: that when the owner of a-building has done all in his power to erect a safe structure for the purpose for which it is to be used, he is not liable to others for its occult defects. Of course this is to be taken with the qualification that he had no knowledge of the defect, and no reason to lead him to believe the building to be unsafe.” In Carson v. Godley (supra), where the action was to recover for damage to property caused by the falling of a storehouse let by the defendant, the court said: “ With his eyes wide open to the fact that the government would use his storehouse for heavy storage, he let them have it, knowing that it was unfit for such use, and he inserted no word of caution or restraint in the lease.” In Godley v. Hagerty (20 Penn. St. 387), in an action for a personal injury received from the falling of the same storehouse, it was held that the owner of such a building is liable for injuries sustained by a stranger in consequence of its grossly negligent and insufficient construction. Woodward, J., said: “ If after it was finished he.c(the landlord) knew there were defects in it which unfitted it for the designed purpose, he should have stipulated in his lease against its being used for heavy storage. He omitted his duty in both respects. He did not build a strong storehouse, and he did not forbid heavy storage; he must bear the consequences of his neglect.” *251In Robbins v. Jones (15 C. B. [N. S.] 221) it was said by Erle, C. J.: “A landlord who lets a house in a dangerous state is not liable to the tenants, customers or guests for accidents happening during the term; .for, fraud apart, there is no law against letting a tumble-down house, and the tenant’s remedy is upon his contract, if any.” In Mellen v. Morrill (126 Mass. 545), it was held that the owner of a building leased to a tenant who occupies it is not liable to a person who, in passing along a walk leading from the street to the building, for the purpose of transacting business with the tenant, is injured by falling down an embankment adjoining the walk, although the estate was in that condition prior to the letting. Morton, J., said: “ He (the defendant) had leased it to a tenant, and there is nothing to show that he retained any control over the walk, or any right to direct the purposes for which the premises should be used. The fact that the walk was in the same com dition before the demise is not material. The defendant did not guarantee that the premises should be safe for all the uses to which the tenant might put them. The tenant alone had the right to determine the purposes for which he would use the premises. If he used them so as impliedly to invite people to visit them in the night, it was his duty to make them safe by a railing, or by a light, or other warning. It was not the duty of the landlord, and indeed he would not have the right without the consent of the tenant, to do this.” In Nelson v. Liverpool Brewery Company (L. R., 2 C. P. D. 311), it was held that the landlord is liable for an injury to a. stranger by the defective repair of demised premises only when he has contracted with the tenant to repair, or when he has been guilty of misfeasance, as for instance, in letting the premises in a ruinous condition; in all other cases he is exempt from responsibility for accidents happening to strangers during the tenancy.” That was a case where a portion of the building fell from its own weight in consequence of its ruinous condition, causing the injury complain.ed of.
In this case then, under all the authorities, the liability to this plaintiff for the injuries sustained by him from the falling *252of the gallery can be imposed upon the. defendant only by proving negligence on its part, and the burden of establishing the negligence rests upon the plaintiff. Now, what are the facts % The defendant owned the premises known as Gilmore’s Garden, and rented them to one Kelley for the purpose of giving therein a pedestrian exhibition for the space of ten days, for the rental of $5,000. It was conceded upon the trial that one of the conditions of the demise was that the tenant might make any and all such changes in the interior of the building, in the appointments and fixtures thereof, as he might see fit at his own expense, on condition that he should surrender the premises at the end of the term in the same state they were in at the beginning thereof. There was no agreement on the part of the landlord to make any changes or repairs. In the progress of the trial, subsequently to the concession referred to, which should be taken as true having been made for the purposes of the trial, a portion of a letter written by the defendant to Kelley was produced which specified that any alterations contemplated to the building must first be submitted to the president or vice-president of the defendant for approval, which being obtained, the alterations were to be made and the property restored to its original condition at the expense of the lessee. That clause in the letter, assuming that it was embodied in the lease between the parties, does not alter the effect of the- concession, because the lessee was to determine what alterations he chose to make, and then had the right to make them, providing he could obtain the approval of one of the officers named. ' It does not appear that the approval of any proposed alteration was applied for or refused. So the ease must be treated as if the tenant had the right to make any changes in the interior arrangements of the premises which he saw fit to make. “ The gallery which fell was erected at the westerly end of the building a short time prior to the demise, and was .used on several occasions for Mardi Gras and other festivals. It was divided into boxes capable of holding from four to six persons, and each box was supplied with a table and chairs, and they were intended for occupation by persons who could be served with re*253freshments while witnessing the performances upon the main floor. The persons occupying the boxes during the festival performances were charged a much higher price than those who occupied other portions of the building. The gallery was built under the supervision of an architect, and was suitable for the purposes for which it had been rented and for which ,it had been used. It was conceded upon the trial that it was built simply to accommodate a limited number, and not to be used for such an exhibition as a walking match; but there was no concession that it was not sufficiently strong to hold all the persons who could get into it, or that the defendant had any knowledge whatever of its weakness or defects. In the absence of proof it must be inferred that the tables and chairs were in the boxes at the time of the demise, and thus that the use for which the gallery was intended was apparent. There is no evidence that the defendant knew that the tables and chairs were to be removed, and that these boxes were to be filled with all the people who could crowd into them. Much less is there any proof that it knew or had reason to suppose that the same price would be charged for all persons entering the gallery as was charged for persons entering other parts of the building, or that the boxes were to be filled with a noisy, boisterous crowd of people, stamping and keeping time to music. There is no evidence and no inference from any evidence in the case, that the defendant knew or had reason to suppose that the' gallery would be used in such a way as to endanger its security, if or was there any proof that any defect in the gallery was apparent or known to the defendant, or that it could have been known by any examination that could have been reasonably expected or required or even made. The architect, called as a witness by the plaintiff, testified that the gallery was perfectly safe for a quiet crowd, but was not when crowded full of boisterous people, moving and stamping to the time of music, which would break down almost any structure. The sole proof by which it is sought to impose negligence upon the defendant is that the gallery, which was thus filled by people thus conducting, fell. There was no proof even that any of the timbers in the gallery
*254were too small or weak and that they broke, or that they were not properly joined together and supported, or that the gallery was in any respect negligently constructed. The proof is simply that it fell, and the only apparent cause was the rhythmic tramp of the people who filled it, a cause which the landlord certainly was not bound to foresee and guard against. From such a state of things an inference of negligence is not justifiable. There was no proof that the gallery was not' built as strong as any of the other galleries in the same building. Kelley, the lessee, knew the purpose for which the building was to be used, and the character of the exhibition which was to be given ; and he could anticipate the crowd of persons who would be called there. He was there and witnessed the manner in which the people conducted themselves ; that they were noisy and boisterous and walking about, keeping time to the music. He could have placed supports and props under the gallery. That much he could have done, even without the consent of the landlord, as it would have been no alteration of the building. The landlord had no right to enter the building for the purpose of making any changes or alterations or to strengthen or support the galleries in any way. That duty rested entirely upon the lessee. I repeat that there is not the least evidence that the defendant knew that the building was unfit for the exhibition of a walking match, the character of which was not generally known and could not be presumed, or that the gallery would be unsafe for the-persons who should enter it for the purpose of witnessing that match; and there can be no pretense that the building or the gallery was a nuisance. If it had been shown, or could reasonably be inferred, that the defendant knew how this gallery was to be used, and that it was dangerous and unfit for that use, and that it concealed its knowledge and did nothing to guard against the danger, no argument would be needed to establish its liability, as that would rest upon obvious principles of law universally applicable.
The case of Swords v. Edgar (59 N. Y. 28), somewhat relied upon by the counsel for the plaintiff, is one where liability was imposed upon the lessor of a public dock upon the ground that *255he had suffered a nuisance in his dock before the demise, and he was held liable on that ground. The decision was made against the dissent of three judges, and after overruling several cases decided in courts of high authority in this country and England, and the ground of nuisance is the only one upon which that decision can stand. There are other similar cases in the New England States and in England. A dock is regarded as a species of public highway, and the owner who suffers a nuisance to be created and continued upon his dock remains liable upon the ground of nuisance. The case of Camp v. Wood (76 N. Y. 92) does not sustain plaintiff’s contention. In that case the landlord was found guilty of negligence for not keeping safe the portion of the building which remained in his possession and under his control. It was held that the lessor owed some duty to the persons who with his knowledge and consent came into his building, and might thus be exposed to the danger which caused the accident. The maxim sio utere, etc.) is sufficient to justify the decision of that case, which is based upon the same principle which imposes liability upon one who digs á hole upon his premises so near a highway that travelers are exposed to the danger of falling therein and being injured. The case of Francis v. Cockrell (supra) did not involve the liability of a lessor, and the question -to be determined in this case was not under consideration there. The point decided there was that “ a man who causes a building to be erected for viewing a public exhibition and admits persons on payment of money to a seat in the building, impliedly undertakes that due care has been exercised in the erection, and that the building is reasonably fit for the purpose.” The liability was placed upon the ground that there was an implied contract between the defendant and his' associates, and every person from whom they received an admission fee to the exhibition, and the distinction between the liability of those who gave the exhibition in that case and took pay for admission to the same, and the liability of a landlord during the term of his demise was clearly and properly stated, as shown by the abstract from one of the opinions hereinbefore given. In the *256case of Crote v. Chester and Holyhead Railway Company (2 Exch. 251), the plaintiff suffered injury by the breaking down of the bridge of the defendant, while being carried over the same by another railroad company, and it was held that the defendant was liable. There was no question in that case of landlord and tenant. The defendant had not leased the bridge or its railroad to the other company, but for compensation paid to it, it permitted that company to carry its passengers over its road and over the bridge; and it was held, as it was in the case last cited, that the defendant was under a contract obligation to furnish a reasonably safe bridge, and it was made liable for a breach of the implied contract.
We are, therefore, of opinion that there was nothing in this case for submission to the jury, that the plaintiff was properly nonsuited, and the judgment below should be affirmed.