I. The plaintiffs in this case claim to recover damages occasioned through the negligence of the defendants in improperly constructing a drain upon premises leased by the plaintiffs of the defendants, and in suffering it to remain defective. If, by reason of the faulty construction of the drain by the defendants, the plaintiffs, without fault on their part, were injured, the defendants are liable. Alston v. Grant, 3 El. and Bl. 128 (77 E. C. L. 127). And it has been held that this is equally so where the party injured is a stranger. Payne v. Rogers, 2 H. Bl. 350; Godley v. Hagerty, 20 Pa. St. 387; Reeves v. Larkin, 19 Mo. 192. For negligently suffering the drain to remain defective,, after notice that it had become so, there would be a similar liability. Church of the Ascension v. Buckhart, 3 Hill 193. But the judge before' whom the case was tried not having found that the defendants were guilty of negligence in constructing the drain, or in not repairing it, nor, as we think, that they were not guilty of negligence in either or both of those respects, we can neither hold that they are liable nor that they are not liable, by reason of any actual evidence on their part, either in constructing the drain, or in not repairing- it. If, therefore, • *430the plaintiffs arc not entitled to recover upon any other ground, there must be a new trial for the purpose of determining the question whether there was any want of ordinary care on the part of the defendants in not providing a suitable gate, or other apparatus, to prevent the flow of water from the sewer into the drain, or in not repairing the breach within a reasonable time after they had notice of it, or for any other reason.
II. But the plaintiffs say that though the defendants might, by reason of not being actually in fault, be exempt from liability for such an injury to a stranger, they must be held liable in this action by virtue of the relation of landlord and tenant existing between the parties. But what obligation did that relation impose on the defendants ? The plaintiffs might have declined to occupy the premises unless the defendants would expressly covenant that they were suitable for use; but they saw fit to enter and occupy without any express covenants. There are, it is true, respectable authorities which hold that where premises are let for the purposes of occupation, there is an implied condition that they shall be fit for use — Smith v. Marrable, 11 M. & W. 5 (41 E. C. L. 263), Edwards v. Hetherington, 7 D. & R. 117 (16 E. C. L. 271), Collins v. Barrow, 1 Moo. & R. 112, Salisbury v. Marshall, 4 C. & P. 65 (19 E. C. L. 275), Cowie v. Goodwin, 9 C. & P. 378 (38 E. C. L. 162), Gilhooley v. Washington, 4 N. Y. 217; but the weight of authority is decidedly the other way. Smith’s L. & T. (ed. of 1856) 262 and note; Woodfall’s L. & T. (10th ed.) 493; Taylor’s L. & T., sec. 381; 1 Pars, on Cont. (5th ed.) 589; 1 Washb. R. P. (3d ed.) 473; Sutton v. Temple, 12 M. & W. 52; Hart v. Windsor, ib. 68; Chappell v. Gregory, 34 Beav. 250; Carstairs v. Taylor, L. R., 6 Exch. 217; Cleves v. Willoughby, 7 Hill 83; Dutton v. Gerrish, 9 Cush. 89; Foster v. Peyser, ib. 242; Royce v. Guggenheim, 106 Mass. 202; Elliott v. Aiken, 45 N. H. 36. It is very clear upon the authorities that the defendants, in the absence of proof of actual fault on their part, are not liable in this action by virtue of any implied warranty that the plaintiffs’ goods should not be injured by the bursting of a drain pipe.
The defendants might be liable to their tenants, or to strangers, for subsequent injuries, if, after notice of the bread), they were negligent in not reparing it; but wrn think not to one who, being aware of the defect, unnecessarily exposed his goods to injury by it. The judge finds that the plaintiffs “ immediately notified the defendants, and requested them to repair the breach so as to prevent further damage ; but nothing further was done.” He does not find, as we understand his report of the facts, whether the plaintiffs were in fault for allowing their goods to remain in an exposed situation, as we think they would be if the defendants, on being notified, refused to make the necessary repairs. If the defendants on receiving this notice promised to repair the breach immediately, that might justify the plaintiffs in continuing to occupy the premises, and render the defendants liable for the subsequent injuries. Otherwise, it must be held that the plaintiffs .allowed their goods to remain there at their peril, unless, by the relation *431of landlord and tenant, there was a duty imposed on the defendants to repair the defect in the drain on receiving notice of it.
III. But as there was no express contract, so it is well settled that none can be implied by law, on the part of the defendants, to keep the leased nremises in repair. Smith’s L. & T. (ed. of 1856) 262; Taylor’s L. & T. (6th ed.), secs. 327-331; Woodfall’s L. & T. (10th ed.) 493; Howard v. Doolittle, 3 Duer 464; Alston v. Grant, 3 El. & Bl. 127; Leavitt v. Fletcher, 10 Allen 121; Elliott v. Aiken, 45 N. H. 36; Brewster v. DeFremery, 33 Cal. 341; Doupe v. Genin, 45 N. Y. 119.
In Brewster v. DeFremery, the plaintiff’s intestate was lessee of the defendant: in consequence of excavations by an adjoining owner, a wall upon the leased premises became insecure: the defendant was notified to protect it, but did nothing, and the wall fell and killed the intestate and injured his property. In Doupe v. Genin, the roof upon the leased premises was burned: rain came, and ran through the rooms of other tenants of the defendant down to the rooms occupied by the plaintiff, and did damage. In each case it was held that there was no liability on the part of the landlord.
But if a landlord knows of a defect and conceals it from his tenant, he is liable for the consequences. Taylor’s L. & T. (6th ed.) 294, note; 1 Pars, on Cont. (6th ed.) 501. Ordinarily, the tenant is not exempted from the payment of rent by proof that the premises were or have become unfit for occupation — Howard v. Doolittle, 8 Duer 464; but where the lessor was guilty of acts that precluded the lessee from a beneficial enjoyment of the premises, in consequence of which he abandoned the possession before the rent became due, it was held that this was a virtual expulsion, and that the lessor’s action for the recovery of the rent was barred. Dyett v. Pendleton, 8 Cow. 728; Edgerton v. Page, 20 N. Y. 283; Royce v. Guggenheim, 106 Mass. 201.
For the purpose previously stated of determining whether the defendants were actually in fault in the construction of the drain, or for not repairing it, there must be
A new trial.