Bennett v. Sullivan

• Decision Date: 29 March 1905
• Citation: 100 Me. 118,60 A. 886
• Parties: BENNETT v. SULLIVAN et al.
• Court: Maine Supreme Court

60 A. 886

100 Me. 118

BENNETT

v. SULLIVAN et al.

Supreme Judicial Court of Maine.

March 29, 1905.

Report from Supreme Judicial Court, Androscoggin County.

Action by Fred A. Bennett against Daniel F. Sullivan and others. On report. Judgment for defendants.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

George C. Wing, for plaintiff. Newell & Skelton, for defendants.

WHITEHOUSE, J. This is an action to recover damages for an injury sustained by the plaintiff October 13, 1903, by reason of the defective condition of a platform on the defendants' premises, one tenement of which was occupied by the plaintiff as a tenant at will. The testimony is reported to this court for a final determination of the rights of the parties.

It is alleged in the plaintiff's declaration that the "plaintiff at the time of becoming a tenant was promised by the agent of defendants that if he would enter into the use and occupation of said premises, or a portion of the same, to be assigned to him, the same should be put in good repair and in safe condition; that only upon this agreement did he become the tenant of the defendants, and began his occupancy of said premises as such; that the premises were allowed to fall into decay, and by exposure to the weather become rotten and unsafe, all of which the defendants well knew, and which condition of affairs they neglected to correct. And among other appurtenances in connection with said premises was a platform, erected for the purpose of hanging clothes to dry, and for general uses in connection with the occupancy of said premises."

In support of this averment the plaintiff introduced evidence showing that at the time of the accident he was in occupancy of the middle tenement of the defendants' three-story dwelling house in Auburn at a rental of $11 per month, payable monthly; that at the time he engaged the tenement, about four years prior to the accident, the defendant's agent told him if he would move in he would "fix it up" and "see that it is all put in proper shape in the spring." It is not claimed that this agreement was in writing.

The defendants' agent, Mr. Allen, denies that he gave any assurance whatever that he would make repairs on the tenement at any time, and testifies that the platform in question, at the rear end of the stable, was not an appurtenance of the middle tenement, engaged by the plaintiff, but the basement was occupied by one Pusy. It also appears from the testimony of the plaintiff's wife that the use of this platform was not expressly included as one of the privileges connected with the plaintiff's tenement at the time of the original hiring, but that she obtained permission from Mr. Allen, a few days after they moved in, to use this platform for the purpose of hanging out clothes; and she admits that Mr. Allen informed her, in substance, that it could only be used by her with the consent of Mr. Pusy. who occupied the basement. The plaintiff's wife further testifies that some two years afterward her foot went through the floor of this platform on account of its defective condition, and, upon her complaint, Mr. Allen said he would "see to it at once." This is also denied by Mr. Allen. It is agreed, however, that no repairs were ever made on this platform during the plaintiff's occupancy of his tenement, prior to the time of the accident, and that he was injured by falling from it on account of the defective condition of the railing.

The law governing the rights of parties in the situation disclosed by this evidence is well settled in this state. It is a familiar rule, in the first place, that in the case of a dwelling house there is no implied warranty that it is reasonably fit for habitation, and no obligation on the part of the landlord to make repairs on the leased premises, unless he has made an express valid agreement so to do. Libbey v. Tolford, 48 Me. 316, 77 Am. Dec. 229; O'Leary v. Delaney, 63 Me. 584.

In the case at bar, however, it is contended in behalf of the defendants, in the first place, that upon the plaintiff's own testimony, considered in connection with the undisputed facts in the case, the agreement to repair alleged to have been made by defendants' agent was within the statute of frauds, and could only be proved by some memorandum in writing; and ...