Dustin v. Curtis
Decision Date | 04 June 1907 |
Citation | 67 A. 220,74 N.H. 266 |
Parties | DUSTIN v. CURTIS. |
Court | New Hampshire Supreme Court |
Exceptions from Superior Court.
Action by Henry D. Dustin against Augusta W. Curtis. A nonsuit was ordered at the close of plaintiff's evidence, and he excepted. Overruled.
The defendant owned a building occupied by several tenants, and containing a hall which was rented by a lodge of Odd Fellows of which the plaintiff was a member. Whether the lodge was an association or a corporation did not appear. March 11, 1898, while the plaintiff was attending a meeting of the Rebekah branch of the lodge, he was injured by a fall of plastering from the ceiling. He had no knowledge of the defect in the plastering. The hall was first let to the lodge on March 16, 1886, for a term of five years, at an annual rental of $84; the defendant agreeing to make repairs. In December, 1891, and January, 1892, there were negotiations which resulted in the lodge continuing as tenant of the hall at an annual rental of $100. If the terms of the original letting were reduced to writing, the lease could not be found. There was no definite evidence of a written lease. The plaintiff was present in 1892, when it was arranged that the lodge should continue as tenant At the trial he was asked, "What change, if any, was made in the original rental?" and he replied, "The price was raised to $100 a year." Subject to the defendant's exception, Mrs. Dustin, a witness for the plaintiff, testified that in April, 1899, the defendant's husband, who was her agent in letting and managing the hall, told her he was to make the repairs. Some little time before the accident the defendant was informed that a portion of the plastering had fallen, and her husband sent a person to see what repairs were needed, but there was no evidence that any repairs were ever made. There was evidence that the plastering, at the point where it became detached and fell, had been wet from leakage during that winter and before, but it was not shown where the water came from.
Martin & Howe, for plaintiff. Streeter & Hollis, for defendant.
It is clear upon the evidence that the premises upon which the plaintiff was when he received his injury were in the possession and control of a tenant. It is equally clear that the plaintiff was not present at the time as a guest of the defendant, or upon her invitation. The plaintiff claims that he was there as the tenant, or as a guest of the tenant. It is doubtful whether the evidence is sufficiently definite to warrant either conclusion; but if we assume that the plaintiff was present as a tenant, that one of the terms of the tenancy was that the defendant should make all necessary repairs, and that the plaintiff's injury was due to the defendant's omission to repair, it does not follow that this action of tort for negligence can be maintained against the defendant because of her omission in this respect, unless her failure resulted in the breach of a duty imposed by law, as well as the breach of an obligation created by the agreement of the parties. Buch v. Company, 69 N. H. 257, 260, 261, 44 Atl. 809, 76 Am; St. Rep. 163; Pittsfield, etc., Co. v. Shoe Co., 71 N. H. 522, 531, 53 Atl. 807, 60 L. R. A. 116.
In Courtenay v. Earle, 10 C. B. 73, Jervis, C. J., in speaking of the case of Boorman v. Brown, 3 Q. B. 511, said: In Legge v. Tucker, 1 H. & N. 500, Pollock, C. B., in stating the distinction between actions of contract and actions of tort, said: "When the foundation of the action is a contract, in whatever way the declaration is framed, it is an action of assumpsit; but when there is a duty ultra the contract, the plaintiff may declare in case." And in Tattan v. Railway, 2 E. & E. 844, Cockburn, C. J., in considering the subject, said: ...
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