314 Mass. 759 | Mass. | 1943
On August 29, 1939, the plaintiff’s husband was a tenant at will of the defendant in premises on Orange Street, in Worcester, where the plaintiff and her husband resided. On that day the plaintiff fell and was injured by reason of the defective condition of some steps leading from the kitchen to a walk. The steps were used only by the plaintiff and her family and were apparently part of the demised premises. At any rate, the plaintiff’s case is rested upon the proposition that the defendant had agreed “to keep the rented premises in a condition of safety on his own responsibility without reference to notice by the tenant,” which is equivalent to saying that this case belongs to the third class of cases described in Fiorntino v. Mason, 233 Mass. 451, 453, where the landlord agrees that he will “keep and maintain the premises in a condition of safety on his own responsibility and without reference to notice from the tenant of defective conditions,” and where he “constantly retain[s] such possession of the premises as is necessary for that purpose.”
The evidence on the point came entirely from the plaintiff’s husband, who testified that up to February or March his rent had been “only” $16 a month because he had been doing work for the defendant on the premises for which the defendant gave him credit; that in February or March he went to the defendant’s office “to straighten out the bill”; that after some dispute they “settled that up”; that the defendant told the witness that the defendant “would have
The question is whether this evidence would warrant a finding that the defendant agreed “to relieve the tenant from any attention or thought respecting notice of needed repairs, so that the tenant . . . [might3 be as care free respecting the condition of the demised premises as is the guest in a hotel respecting the room assigned for his occupancy.” Fiorntino v. Mason, 233 Mass. 451, 453. In our opinion it falls short of what is required to establish an undertaking of the kind contended for. Such an undertaking is burdensome in the extreme to the landlord. At least when applied, as here attempted, to all portions of a tenement, it involves a degree of retention of control by the landlord which would be a surprise to most tenants. It must be seldom indeed that such an agreement is actually made. Such an agreement is not readily to be inferred from evidence which fails to disclose distinctly every essential element of it. It cannot be found from evidence of a promise to assume complete responsibility for placing the premises in a condition of repair and safety without evidence of an agreement to assume complete and continuing responsibility for keeping them in that condition thereafter. Trainor v. Keane, 304 Mass. 466. Bailey v. First Realty Co. 305 Mass. 306, and cases cited. The evidence fails at
Exceptions overruled.