324 Mass. 515 | Mass. | 1949
These are three actions of contract or tort for property damage arising from the collapse on May 8, 1945, of the first floor of the building numbered 5 and 6
The first action is by Esther L. Gade against the creamery company, her declaration alleging waste in count 1 and negligence in count 3. Count 2 has been waived. A motion of the defendant for a directed verdict was denied. The defendant excepted to the denial and thereafter the jury returned a verdict for the plaintiff.
The question for decision on the first count is whether there was sufficient evidence to warrant the jury in finding
The second action is by National Creamery Company against Esther L. Gade for breach of.an implied warranty of structural fitness. A second count for negligence, in the plaintiff’s declaration has been waived. The plaintiff excepted to the direction of a verdict for the defendant. In the ordinary lease of real estate there is no implied warranty that the premises are fit for occupancy dr for the particular use contemplated by the lessee. The lessee takes the premises as he finds them. Dutton v. Gerrish, 9 Cush. 89, 93-94. Barnett v. Clark, 225 Mass. 185, 188. Stumpf v. Leland, 242 Mass. 168, 171. Bolieau v. Traiser, 253 Mass. 346, 348. The plaintiff, however, contends that the. present case comes within the exception to the general rule stated in Ingalls v. Hobbs, 156 Mass. 348, where, in reference to the lease -of a completely furnished dwelling house for a single season at a summer watering place, it was held that there was an implied agreement that the house was fit for habitation, without greater preparation than one hiring it for a short time might reasonably be expected to make in appropriating it to the use for which it was designed. The principle of Ingalls v. Hobbs, although extended to include in the implied agreement the structural condition of the house, Ackarey v. Carbonaro, 320 Mass. 537, has been recognized as a departure from the general rule, Hacker v. Nitschke, 310 Mass. 754, and in its application has been limited to factual conditions similar to those on which the
The third action is by National Creamery Company against Harry Weiner and Alice H. Weiner also for breach of implied warranty of structural fitness. In this case also a second count for negligence has been waived. The plaintiff's exceptions are to the direction of a verdict for the defendant Alice H. Weiner at the conclusion of the evidence and the entry of a verdict for the defendant Harry Weiner under leave reserved after a verdict for the plaintiff. For the reasons stated in our discussion of the second action, the judge was right in directing and entering verdicts for the two defendants.
7 , Exceptions overruled.