244 Mass. 159 | Mass. | 1923
This is an appeal from an order “Report dismissed” of the Appellate Division of the Municipal Court of the City of Boston. The action was one of contract, brought to recover rent for the months of May and June, 1921. The special justice of the Municipal Court found for the plaintiff and reported all the material evidence to the Appellate Division of that court.
The plaintiff and the defendant were the only witnesses and their testimony was conflicting. The defendant’s testimony warranted a finding that he asked the plaintiff if he had a suite of rooms for rent; that the plaintiff said that he had, that the rooms “were in good condition, fit to live in and that the rental would be $55 per month after the month of February;” that the defendant thereby was induced to move into the rooms in February; that the rooms when moved into were without electricity or gas; that it was necessary for a time to light them with candles; that the doors were without knobs and locks and the cellar under the apartment was a dirt cellar; "that after the defendant moved into the apartment he asked the plaintiff whether or not repairs would be made;” that the plaintiff promised to “fix up” the premises for the defendant so that the rooms would be in good condition and fit to live in; that the defendant paid the rent to the plaintiff for
Upon the testimony of the defendant the ruling for the plaintiff was right. If we assume the plaintiff misrepresented the condition of the rooms, and the condition of them was such as the defendant describes, it further appears that the defendant knew that the statement was not true, was visibly not true, when in February he entered upon the premises and during all the time he occupied them as a tenant at will, — through the months of February, March, April, May and June, 1921. In such a case it is manifest the trier of fact could properly find that the representee was not misled by the plaintiff’s intended perversion of facts, of the exact truth of which the defendant had complete information. Bartnett v. Handy, 243 Mass. 446.
If we further assume, contrary to the testimony of the plaintiff, that the plaintiff continually promised to fix up the rooms so they would be fit to live in, and promising, never performed, the failure of the plaintiff did not absolve the defendant from his obligation to pay the rent agreed; the right, if any, of the defendant to damages for non-performance of the promise to repair would be worked out through an independent or cross action and not by way of recoupment to the obligation of the defendant to pay rent for the use and occupation of the premises while occupied by him. Couch v. Ingersoll, 2 Pick. 292. Weed v. Crocker, 13 Gray, 219, 227. Spear v. Hardon, 215 Mass. 89.
It is plain the neglect or failure of the landlord to perform his promise to repair the rooms did not constitute a constructive eviction of the defendant, which operated to suspend the payment of rent until repairs were made; nor relieve the defendant of the
What has been said makes it plain that the defendant was not harmed by the refusal to give the requests for rulings which were not given. It follows that the order of the Appellate Division “Report dismissed” is affirmed.
So ordered.
