Upon the record as originally made up it was impossible to determine what was tried, or how the trial proceeded. It appears, however, from the amendment procured since the argument that a question of negligence was submitted to a jury, and decided in the affirmative, the finding that Simpson did not become a tenant until after the alterations in the building were completed was made by the justice who had presided at the trial, and the parties agreed that if liability should be established the damages should be assessed by a master or referee. It does not appear what duty the jury found to have been violated. The defendant's motions for nonsuits and directed verdicts are transferred without a ruling, but the evidence as to liability is not transferred, and there is no statement of what it tended to prove. Apparently, the situation was that the plaintiffs claimed to recover for the alleged negligence of the landlord, and the defendant challenged the legal position of the plaintiff by moving for a nonsuit. This is the question which has been argued, and the decision of the case here depends upon the answer thereto.
A portion of the building collapsed because of a defect in the plan of certain reconstruction work done upon it by the defendant before *Page 15 either of the plaintiffs became his tenant. There was no claim at the trial that the landlord knew that the structure was insufficient. It is well settled in this jurisdiction that the landlord is not liable to the tenant for the mere faulty condition of the leased premises, in the absence of express warranty or deceit. Clark v. Sharpe, 76 N.H. 446, and cases cited; Rowan v. Company, 79 N.H. 409. It is urged, however, that since the landlord himself erected the insufficient support "negligently," he is chargeable with knowledge of its faulty character. The building was his, and at the time the work was done the plaintiffs were not his tenants. He bore no relation to them, and consequently could not be guilty of any negligence in the legal sense of that term. Garland v. Railroad,76 N.H. 556. His erection of an insufficient building involved no breach of any duty toward the plaintiffs, and no liability can be predicated upon such fault.
Unless it is the law that one who erects an unstable building is chargeable with knowledge of its defects, so that his failure to disclose the condition to a prospective tenant amounts to deceit, there is no ground upon which the defendant can be held liable here. While it is true that in certain cases a representation made without knowledge of its falsity can be made the foundation of an action for deceit, the cases go upon the ground that there must be a "conscious indifference, not caring whether it was true or false." There must be "want of belief or conscious disregard for the truth or falsity of his statement." "You must prove a dishonest mental state or condition of mind on the part of the speaker with reference to the truthfulness of his statement." Shackett v. Bickford, 74 N.H. 57, 59, 60. "The idea that gross negligence can take the place of the dishonest state of mind as an element in an action for fraud is not now the law here." Follett v. Insurance Co., 77 N.H. 457, 459, and cases cited.
When it is borne in mind that the only representation that can be relied upon here is the negative one implied from not making disclosure of known facts, it is apparent that a cause of action sounding in tort is not made out. There was no claim at the trial that the defendant knew the building was insufficiently supported. His silence was no more than an implied assertion that he knew of no secret defect in the premises. Such apparently was the fact. The element of the dishonest mental state upon his part is wholly lacking.
The defendant knew what the construction of the building was, *Page 16 but there was no suggestion at the trial that he knew that such construction was faulty. If the question here were one of warranty of fitness, or of duty to use reasonable care in construction, the plaintiff might prevail. But the ground of liability relied upon is a narrow one, and is not proved by evidence that if the defendant had owed a duty to use care to make the premises safe he would have been held to have known that which, because of such duty, he ought to have known. In the suit for neglect of the duty to use care the failure to know may be relied upon, since the duty imposed is to both know and do according to the rule of reasonable conduct. The failure to know is a form of negligence, and can be relied upon as a legal fault only in cases where there is a duty to use care. Garland v. Railroad, 76 N.H. 556. Take away that duty, and there is nothing left upon which to base a charge of fault in respect to honest lack of knowledge. The fallacy in the reasoning in the cases holding or suggesting that there may be a liability upon such facts (Cutter v. Hamlen, 147 Mass. 471; Cowen v. Sunderland, 145 Mass. 363) lies in the failure to apply this principle, or to recognize that this is purely an action for deceit, and that the dishonest state of mind is an essential element of the wrong complained of. There is a plain difference in fact and morals, as well as in law, between ignorance which is consciously dishonest and that which is entirely honest, although it results from the unconscious failure to be as vigilant as the average man. In short, the defendant was under no duty to know. His only duty was to be honest.
"The sole question presented by the defendant's motion is whether there was evidence from which it could be found that she knew of the defect which caused the injury. . . . The question is not what the defendant ought to have done, or what she ought to have known, but what she did in fact do and know." Clark v. Sharpe, 76 N.H. 446, 447. In a late Massachusetts case the rule is stated substantially as it is understood here. "This obligation does not exist in the absence of knowledge on the part of the landlord. It does not impose a duty of inspection in order to find defects and consequent liability for negligent performance of such inspection." Stumpf v. Leland, 242 Mass. 168, 169.
The plaintiff Simpson's exception to the finding that she did not make her contract to become a tenant until after the work upon the building was completed remains to be considered. It appears from the amendment to the case that this finding was made by the presiding justice after the issue of negligence had been tried by a *Page 17 jury. No exception was taken to this procedure, and the question of its regularity is not raised. The objection and exception are based upon the proposition that the finding was made without evidence to support it. The evidence upon this issue is transferred, and discloses that the landlord testified that there was no bargain made until after the work was done. The assignment of error is untenable; and the question what the rights of the parties would have been if the alterations of the building had been made after a contract for a future tenancy had been entered into does not arise.
Upon the record, the defendant was entitled to a nonsuit in each case. Since the case was argued, the plaintiffs have filed in the superior court a motion that the issue of the defendant's knowledge that there was a secret defect in the building be submitted to a jury. Copies of the papers have been filed here. This is in substance a motion for a further trial. It presents an issue which has not been tried, and the determination of which is essential to the ascertainment of the rights of the parties.
Case discharged.
YOUNG, J., was absent: the others concurred.