Herder v. Bloomer

The basis of the plaintiff’s cause of action is the negligence of the defendant in the performance of .a duty assumed by the latter under an agreement between the parties. This agreement, as alleged, was that the defendant should exercise due care in securing the door of the plaintiff’s loft, when making use of the same for the purposes of ingress and egress from a certain part of the premises reserved to the uses of such defendant. Apparently the agreement in question formed part of the mutual agreements between the parties in their relation rnspectively of tenant and landlord, and it would seem, also, that an injury to the plaintiff by the theft of his goods was a contingency naturally within the contemplation of the parties when making the agreement, therefore the defendant may be answerable in damages for this result of his negligence, when established. See Addison on Torts, Ch. 1, § 1, The justice, in holding that the plaintiff must prove collusion between the defendant and the thief, and in rejecting the offer of proof of the defendant’s negligence, obviously misconceived the nature of the action, and the resulting dismissal of the complaint was error which requires a reversal of the judgment. Judgment reversed and a new trial ordered with costs to appellant to abide the event. All concur.