| Mass. | Feb 27, 1890
The plaintiff occupied the defendant’s house under a written lease, which contained no covenants as to its condition. There was evidence that it was in bad sanitary condition, and that the plaintiff and his family were made sick, and were obliged to remove from it on that account. This action is brought in contract, to recover the amount paid as rent for the property, and various sums expended in the care of the premises, in making repairs, and in removing to and from the house, and also compensation for labor of the plaintiff and his
It is well settled that there is no implied covenant in a lease of this kind that the premises are fit for habitation. The doctrine caveat emptor applies, and the rule is the same in reference to a le9.se of a dwelling-house as to a conveyance of real estate of any other kind. Foster v. Peyser, 9 Cush. 242. Bowe v. Hunking, 135 Mass. 380" court="Mass." date_filed="1883-09-07" href="https://app.midpage.ai/document/bowe-v-hunking-6421027?utm_source=webapp" opinion_id="6421027">135 Mass. 380. Cowen v. Sunderland, 145 Mass. 363" court="Mass." date_filed="1887-11-23" href="https://app.midpage.ai/document/cowen-v-sunderland-6422587?utm_source=webapp" opinion_id="6422587">145 Mass. 363. The plaintiff therefore has no cause of action growing out of the contract under which he held the premises. Nor can he, for the purpose of claiming damages for a breach of the contract, prove that the defendant represented to him, when he leased him the house, that it was in good sanitary condition; such evidence is incompetent, as tending to vary and enlarge the written contract. Dutton v. Gerrish, 9 Cush. 89.
If a wrong was done the plaintiff such as he alleges, Ms only remedy was in tort, for fraud and deceit in inducing him to take the lease, or for negligence in failing to inform Mm, if by reason of a concealed defect which could not readily be discovered, and which was known to the defendant and unknown to him, the house was dangerous to those who might occupy it. Minor v. Sharon, 112 Mass. 477" court="Mass." date_filed="1873-09-15" href="https://app.midpage.ai/document/minor-v-sharon-6417318?utm_source=webapp" opinion_id="6417318">112 Mass. 477. Bowe v. Hunking, 135 Mass. 380" court="Mass." date_filed="1883-09-07" href="https://app.midpage.ai/document/bowe-v-hunking-6421027?utm_source=webapp" opinion_id="6421027">135 Mass. 380. Cowen v. Sunderland, 145 Mass. 363" court="Mass." date_filed="1887-11-23" href="https://app.midpage.ai/document/cowen-v-sunderland-6422587?utm_source=webapp" opinion_id="6422587">145 Mass. 363. Cutter v. Hamlen, 147 Mass. 471" court="Mass." date_filed="1888-10-19" href="https://app.midpage.ai/document/cutter-v-hamlen-6422882?utm_source=webapp" opinion_id="6422882">147 Mass. 471. The plaintiff has already brought a suit and recovered a judgment upon this cause of action, and if at the trial of that case he failed to show all the damages that he suffered, he cannot now recover them in an action of contract.
According to the account annexed to Ms declaration, all that lie paid out was paid as lessee, in pursuance of the contract between him and the defendant. It is only upon a rescission of the contract that a cause of action would arise in his favor for any part of this account. In many cases of fraud, a contract may be rescinded by the party defrauded and the consideration recovered back. But before that can be done, he must return to the other party that which he received under the contract. If, instead of so doing, he elects to seek his remedy by a suit for damages caused by the fraud, he may recover all his damages in that suit. And he so far affirms the contract that he cannot recover back the consideration. Bassett v. Brown, 105
Without considering whether a lessee can in any case rescind a lease for fraud, and maintain an action for the rent paid, after having occupied the leased premises for many months, (see Milliken v. Thorndike, 108 Mass. 382" court="Mass." date_filed="1871-11-15" href="https://app.midpage.ai/document/kimball-v-story-6416658?utm_source=webapp" opinion_id="6416658">108 Mass. 382,) it is clear that in the present case there is no implied contract by which the plaintiff can recover, either for rent paid, or for any other expenses growing out of his occupation of the defendant’s house.
Exceptions overruled.