McKeon v. Cutter, 156 Mass. 296

McKeon v. Cutter

156 Mass. 296 | Mass. | 1892

Lathrop, J.

„ The rule that the letting of a house does not imply that it is fit, or will continue fit, for the purposes for which it is let, applies equally to the case of the letting of several rooms in a tenement house, if they pass out of the control of the landlord into the exclusive possession of the tenant. See Looney v. McLean, 129 Mass. 33.

In the case at bar, the exceptions state that “ there was no other use made of the water pipes in the plaintiff’s tenement, except to supply water to the plaintiff’s tenement,” and that “the leaks complained of occurred in the pipes in the plaintiff’s tenement.” The case in this respect differs essentially from Priest v. Nichols, 116 Mass. 401, where the pipe was not for the use of the tenants, but was for the use of the landlords, who occupied the floor above that occupied by the tenants.

The plaintiff further contends, that the evidence would have *298warranted the jury in finding that the defendant, through his agent, made repairs on the pipe; and, if they so found, that they might also have found that such repairs amounted to an admission of liability. In Readman v. Conway, 126 Mass. S74, where the defendants owned several shops and a platform in front of all of them, and a person was injured by a defect in the platform, the fact that the defendants subsequently made repairs upon the platform was held to be competent, as in the nature of an admission that it was their duty to keep the platform in repair. But this was because the evidence was conflicting upon the question whether, by the terms of the oral leases, the landlords were to keep in repair the whole of the platform, or each tenant was to keep in repair the part in front of his shop.

In the case at bar, if we assume that the jury would have been warranted in finding that the defendant made repairs on the pipes, we are of opinion that the cáse was rightly taken from the jury. There was no conflict of evidence as to the terms of the letting. The law imposed the duty on the plaintiff to keep the pipes in repair. If the defendant, at the request of the plaintiff, made repairs upon the pipes, this would be a gratuitous act, which would not impose any liability upon him. The ruling that the action could not be maintained was, therefore, right. Exceptions overruled.