Cummings v. Ayer

• Decision Date: 22 May 1905
• Parties: CUMMINGS v. AYER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

188 Mass. 292

74 N.E. 336

CUMMINGS v. AYER.

Supreme Judicial Court of Massachusetts, Middlesex.

May 22, 1905

COUNSEL

M. F. Farrell, for appellant.

A. S Hall, for appellee.

OPINION

BRALEY J.

The order sustaining the demurrer was not accompanied by any direction that judgment thereon should be entered for the defendant, and until this had been done the plaintiff's right of appeal to this court was in abeyance. Rev. Laws, c 173, § 96. Fay v. Upton, 153 Mass. 6, 26 N.E. 997; Rice v. Albee, 164 Mass. 88, 90, 41 N.E. 122. Under the practice adopted in this case by the superior court after the demurrer was sustained an opportunity was afforded the plaintiff to amend her declaration if she desired, while the defendant was at liberty to move for judgment if an amendment was not seasonably filed or allowed, and no injustice was suffered by either party by the course pursued.

While the question of law raised by the demurrer is before us properly, the plaintiff's appeal cannot be sustained. The declaration fails to allege the violation of any agreement made between the parties themselves to keep the demised premises in tenantable repair. Bowe v. Hunking, 135 Mass. 380, 383, 46 Am. Rep. 471; Cowen v. Sunderland, 145 Mass. 363, 364, 14 N.E. 117, 1 Am. St. Rep. 469. It also fails to show that if the defendant ever entered into any enforceable contract with her father to make such repairs, and has broken the agreement, there has been a breach of any duty owed to the plaintiff. If the allegations made are treated as setting out an executory contract to that effect, and its breach, the mere want of repair of the floor, and nothing more, is not sufficient. Tuttle v. Gilbert Mfg. Co., 145 Mass. 169, 175, 13 N.E. 465. In order to hold the defendant liable, it must appear by proper averments that notice was given to him of its condition, or that he knew of it and neglected to make the necessary repairs, or that he agreed to repair without notice, which also is not averred. Hutchinson v. Cummings, 156 Mass. 329, 31 N.E. 127; McLean v. Fiske Wharf & Warehouse Co., 158 Mass. 472, 474, 33 N.E. 499; Marley v. Wheelwright, 172 Mass. 530, 533, 52 N.E. 1066.

No neglect of any duty owed by the defendant to the plaintiff's father under the contract, therefore, is alleged, from which a cause of action owing to the defendant's negligence would have arisen in his favor. The plaintiff, as a member of his household, has no...