We are satisfied from the evidence that the fire occurred from the negligence of the workman employed by the defendants to repair a gutter on the roof of the house leased.
We are also of opinion that it was the duty of the lessees to call on the lessor to make the repairs for which the workman was employed, and that the lessees had no right to cause them to be made without such previous call, and the refusal or neglect of the lessor to make them. This seems to us the just conclusion from Articles 2663 and 2664 of the Code. We consider these provisions of law as wise in themselves, and involving an important right in favor of the landlord, which the lessee should not violate. Owners of houses might be serious sufferers, if it were permitted to tenants to make such repairs as their wishes might dictate, without notice to the owner. Moreover, if the lessor be notified he will then have an opportunity to select workmen in whose skill and carefulness he is willing to confide, and make his own bargain.
There being a duty resulting ¡from the nature of the contract to give such notice, the defendants have acted in violation of it. It is in this violation of duty they have given occasion to the fire, and the fault of the workman whom they employed must be considered their fault, and they must answer for it.
We had some difference of opinion as to another item of the reconventional demand, namely, the claim made by the defendant for $150, being the amount expended for a new floor, but a majority of the Judges are of opinion that it should be allowed, and deducted from the rent note, upon which suit is brought.
It is, therefore, decreed that the judgment of the District Court be reversed, and that the plaintiff recover from the defendants, Thomas A. Snow and John McLean, in solido, the sum of four hundred dollars, (being the amount of the note, less the sum of one hundred and fifty dollars, allowed to the defendants for laying a new floor,) with two dollars and fifty cents, cost of protest, and interest on four hundred dollars from 23d October, 1852, and costs in both Courts, and that upon the residue of the reconventional demand of the defendants, there be judgment in favor of the plaintiff.