216 Mass. 563 | Mass. | 1914
As the rights of both of these plaintiffs depend upon those of Flora Rolfe, she hereafter will be spoken of as the plaintiff.
The defendants were the owners of a building in Boston. They had given a lease of the entire building to one Marks, who himself occupied the street floor of the building and had given a lease of the upper part thereof to the plaintiff’s husband. Both of these leases contained provisions whereby the lessees covenanted that they would “keep all and singular the said premises in such repair, order and condition as the same are in at the commencement of said term, or may be put in during the continuance thereof, damage by fire or other unavoidable casualty only excepted,” and that, “all property of'whatever kind that may be on the premises shall be at the sole risk of the lessee, or those claiming under or through him, and the lessor or their heirs or assigns shall not be liable to the lessee or any other person for any injury, loss or damage, to any person, or property, on the premises.” That is, as we understand the statement in the bill of exceptions, Marks had made these covenants with the defendants, and the plaintiff’s husband had made the same covenants with Marks. There was no privity of contract between the plaintiff’s husband and the defendants.
The plaintiff, it was alleged, had sustained a personal injury by falling upon the floor of a room in the premises leased by Marks to her husband. She offered evidence tending to show that her fall was due to the floor having been flooded and made slippery by a sudden rush of water into the room from a defective gutter on the outside of the window of the room; that the gutter previously had become worn out and leaky; that one Booth, who before the accident had been notified of the defective condition of the gutter, and who was agent for the defendants, had undertaken to repair the gutter, but had done this in a negligent manner and that the sudden inrush of water into her room was due to this negligence.
It is plain that the plaintiff, occupying these premises under the lease to her husband, had no greater rights than he would
But we find no such evidence in this record. There was evidence that Booth had undertaken to make such repairs, and had made them in a manner which could be found to have caused the accident and to have been negligent. But this was not enough. Booth testified also that he was “agent for the defendants” at the time of the accident and had been so both before and since that time. But there was no evidence as to what that agency was, what authority the defendants had given to him, or how far he was authorized to bind them. There could be no presumption that he had authority from them to release Marks from the covenants of the lease which they had given to Marks, so as to subject them to a duty or liability from which by those covenants they had carefully exempted themselves. Much less could it be inferred from the bare statement which was in evidence that he was authorized to subject them to such a duty or liability to a mere stranger, who had no contractual rights against them, and with whom he had as agent for the defendants no call to concern himself or to create relations which they themselves had no occasion to create. It follows that the foundation of the plaintiff’s case fails. Phenix Nerve Beverage Co. v. Dennis & Lovejoy Wharf & Warehouse Co. 189 Mass. 82, 85.
None of the testimony excluded at the trial bore upon this fundamental question. It is elementary that Booth’s authority could not be proved by evidence of his acts and declaration not brought home to the defendants. Baker v. Gerrish, 14 Allen, 201. Deane v. American Glue Co. 200 Mass. 459, 462. The other evi
In each case the entry must be
Exceptions overruled.