315 Mass. 500 | Mass. | 1944
The plaintiff, a tenant at will of the defendant, occupying a store for the sale of paints and wallpaper, seeks in this action of tort to recover damages to his stock in trade caused by a leak in the tin roof over the rear portion of the store, which he alleges arose from the negligent repair of the roof which the defendant undertook to repair in accordance with an agreement made with the plaintiff. The front part of this store occupied a part of the ground floor of a four-story building, and the rear part of the store was located in a one-story addition, built onto and extending from the main building. The jury returned a verdict for the defendant. The plaintiff excepted to certain portions of the charge and to the refusal to grant two requests for instructions.
There was evidence that the plaintiff, in November, 1935, agreed with the defendant to hire the store at a rental of
Upon this evidence, it could be found that the plaintiff refused to perform the first oral agreement of hiring unless the defendant agreed to repair the roof over the rear of the store, that the defendant, agreed to do so, and that the plaintiff entered and occupied the premises and agreed to pay the rent.
The defendant, upon the refusal of the plaintiff to take possession, could terminate the agreement or he could agree to repair the roof and secure the plaintiff as a tenant. The jury could find that the parties had waived the first agreement and substituted a new one or that the first agreement was modified by the second, and that the plaintiff relying upon the second agreement entered upon the premises and became a tenant of the defendant. In either event, it could be found that the second agreement rested upon sufficient consideration. Munroe v. Perkins, 9 Pick. 298. Thomas v. Barnes, 156 Mass. 581. Taylor v. Finnigan, 189 Mass. 568. Earnshaw v. Whittemore, 194 Mass. 187. Bergeron v. Forest, 233 Mass. 392. Conroy v. Toomay, 255 Mass. 87. Withington v. Rome, 258 Mass. 188. Tashjian v. Karp, 277 Mass. 42.
The defendant testified that he did not make any agreement to repair the roof, and the auditor found that the defendant did not agree to repair. If there was no agreement to repair, the repair job done by Doran was a gratuitous undertaking, and no liability would follow the execution of the work unless it was done in a grossly negligent manner. Bergeron v. Forest, 233 Mass. 392. Bell v. Siegel, 242 Mass. 380. Bailey v. First Realty Co. 305 Mass. 306. Greenway Wood Heel Co. Inc. v. John Shea Co. 313 Mass. 177. There was no evidence of such negligence. The jury, however, could consider all the evidence, including that which was contradictory to the findings of the auditor. Cook v. Farm Service Stores, Inc. 301 Mass. 564. If they believed the plaintiff’s testimony, they could find that there was a hole in the roof at the time of the leak in March, 1936, at the same place that Doran had repaired about two months before. Whether the defendant did or did not agree to repair the roof and, if he did, whether the work was properly or negligently done were questions of fact for the jury. A repair job which stops a leak for only ten weeks and then leaves exposed to the weather a hole in the roof might be inferred to have been done in a negligent manner. Shute v. Bills, 191 Mass. 433, 437. Feeley v. Doyle, 222 Mass.
The judge was wrong in charging the jury that there was no consideration for any promise of the defendant to repair the roof. He was right in refusing the plaintiff’s third and fourth requests for instructions. The third request was •broad enough to include a gratuitous repair, and it did not correctly state the principle of law governing liability of a landlord who had negligently made, such a repair. McNeill v. Home Savings Bank, 313 Mass. 664, 668. The fourth request was to the effect that if the condition of the roof was such that extensive repairs were needed and the repairs made were not adequate, then the failure to make adequate repairs would be negligence. The defendant promised to make only such repairs as were necessary at the time he had Doran repair the roof. He did not agree to keep the roof in repair during the duration of the plaintiff’s tenancy. Moreover, the defendant could not be held liable in tort for any mere failure to repair. He could be held hable only for the negligent making of repairs. Finally, the failure to make adequate repairs would not in and of itself constitute negligence. Cormier v. Weiner, 277 Mass. 518. Sordillo v. Fradkin, 282 Mass. 255. Andrews v. Leominster Savings Bank, 296 Mass. 67. Trainor v. Keane, 304 Mass. 466. Bailey v. First Realty Co. 305 Mass. 306. Sawyer v. Atherley, 312 Mass. 596.
Exceptions sustained.