Blood v. Dewey

• Decision Date: 16 February 1944
• Citation: Blood v. Dewey, 315 Mass. 500, 53 N.E.2d 227 (Mass. 1944)
• Parties: WALDO BLOOD v. GEORGE T. DEWEY, JUNIOR.
• Court: Supreme Judicial Court of Massachusetts

315 Mass. 500

53 N.E.2d 227

WALDO BLOOD v. GEORGE T. DEWEY, JUNIOR.

Supreme Judicial Court of Massachusetts, Worcester.

February 16, 1944

January 4, 1944.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & RONAN, JJ.

Landlord and Tenant, Contract of letting, Repairs, Landlord's liability to tenant or his family or his invitee. Contract Consideration. Negligence, Repairs.

Evidence warranted a finding of consideration for a promise to repair the roof of store premises, given by the owner to one with whom he had made an oral agreement of letting, before his entry under such agreement and upon his discovery of a leaking condition of the roof and his representing in substance tat such condition made the premises untenantable for his purposes and, upon the tenant's subsequent entry relying on such promise, the promise became binding upon the owner.

Negligent performance of repairs made by a landlord pursuant to a binding agreement with the tenant to make them, resulting in damage to the tenant's goods, was ground for an action of tort by the tenant against the landlord.

At the trial of an action of tort for damage resulting from improper performance by a landlord of an agreement to repair a roof, where there was a conflict of evidence on the question whether there was a binding promise to make the repairs, it was proper to refuse to instruct the jury that a "landlord who promises to make repairs and undertakes to make them and is negligent in doing his work is liable to the tenant for all damages sustained thereby."

On evidence that a landlord attempted to repair a leak in the roof pursuant to a promise made to a tenant before his entry, it was proper to refuse to give an instruction that "if the condition of the roof was such that extensive repairs were needed and the repairs made were not adequate, then the failure to make adequate [repairs] would be negligence."

TORT. Writ in the Superior Court dated August 30, 1940. The case was tried before Donnelly, J.

There was evidence that the repairs to the roof, described in the opinion, although promised before, were made after entry by the plaintiff.

The requests for instructions mentioned in the opinion were as follows: "3. A landlord who promises to make repairs and undertakes to make them and is negligent in doing the work is liable to the tenant for all damages sustained thereby. 4. If the condition of the roof was such that extensive repairs were needed and the repairs made were not adequate, then the failure to make adequate [repairs] would be negligence."

N. H. Proctor, for the plaintiff.

L. E. Stockwell & C.

N. Dewey, for the defendant, submitted a brief.

RONAN, J. The plaintiff, a tenant at will of the defendant, occupying a store for the sale of paints and wallpaper, seeks in this action of tort to recover damages to his stock in trade caused by a leak in the tin roof over the rear portion of the store, which he alleges arose from the negligent repair of the roof which the defendant undertook to repair in accordance with an agreement made with the plaintiff. The front part of this store occupied a part of the ground floor of a four-story building, and the rear part of the store was located in a one-story addition, built onto and extending from the main building. The jury returned a verdict for the defendant. The plaintiff excepted to certain portions of the charge and to the refusal to grant two requests for instructions.

There was evidence that the plaintiff, in November, 1935, agreed with the defendant to hire the store at a rental of

$50 a month, possession to be taken in December when the then tenant vacated and the rent to be payable in advance commencing January 1, 1936. Shortly thereafter, the plaintiff notified the defendant that he had learned from the tenant that there was a leak in the skylight over the rear of the store, and that he could not move a stock of wallpaper into the store with the roof in that condition. The defendant promised to repair the roof. The plaintiff relied upon that promise and began to move in about the middle of December. The defendant had a roofer, one Doran, repair the leak. After that, from time to time, there were different leaks in various places in this tin roof. On March 18, 1936, there was an extraordinarily heavy rainfall of nearly five inches, and large quantities of water came from the leaks in the tin roof and damaged the plaintiff's wallpaper. The next morning there were six or seven inches of water on the floor. There was a hole in the roof at the same place where patches had been put on by the roofer.

Upon this evidence, it could be found that the plaintiff refused to perform the first oral agreement of hiring unless the defendant agreed to repair the roof over the rear of the store, that the defendant agreed to do so, and that the plaintiff entered and occupied the premises and agreed to pay the rent.

The defendant, upon the refusal of the plaintiff to take possession, could terminate the agreement or he could agree to repair the roof and secure the plaintiff as a tenant. The jury could find that the parties had waived the first agreement and substituted a new one or that the first agreement was modified by the second, and that the plaintiff relying upon the second agreement entered upon the premises and became a tenant of the defendant. In either event, it could be found that the second agreement rested upon sufficient consideration. Munroe v. Perkins, 9 Pick. 298. Thomas v. Barnes, 156 Mass. 581 . Taylor v. Finnigan, 189 Mass. 568 . Earnshaw v. Whittemore, 194 Mass. 187 . Bergeron v. Forest, 233 Mass. 392 . Conroy v. Toomay, 255 Mass. 87 . Withington v. Rome, 258 Mass. 188 . Tashjian v. Karp, 277 Mass. 42 .

Upon the occupancy of the store, the executory agreement which was theretofore unenforceable by either party became an executed agreement imposing binding obligations upon each party. Miles v Janvrin, 200 Mass. 514. Flanagan v. Welch, 220 Mass. 186 . One of the terms of the agreement which resulted in the plaintiff taking possession and becoming a tenant of the defendant could be found to be the repair of the roof. If the defendant in accordance with a binding agreement undertook to repair the roof but performed the work in a negligent manner, and as a result of such negligence the plaintiff's wallpaper was damaged, then a liability for such damage would be established. Feeley v. Doyle, 222 Mass. 155 . Lischner v. Hahn, ...