Fifty Assocs. v. Berger Dry Goods Co.

Citation176 N.E. 643,275 Mass. 509
Decision Date01 June 1931
CourtUnited States State Supreme Judicial Court of Massachusetts


Appeal from Municipal Court of Boston, Appellate Division; J. G. Brackett, Judge.

Action by Fifty Associates against the Berger Dry Goods Company, Inc. From order of appellate division dismissing the report, after finding for plaintiff, defendant appeals.

Order affirmed.

P. K. Finegold, of Boston, for appellant.

W. F. Byrne and R. G. Wellings, both of Boston, for appellee.


This is an action of contract brought in the municipal court. The declaration is in three counts, each on an account annexed, the first and second for rent from June 1, 1929, to October 31, 1929, under two written leases, dated respectively, June 1, 1925, and April 2, 1925, and the third, as to which there is no dispute, for water rates. The defendant pleaded a general denial, payment and eviction, and that the plaintiff by fraud and concealment of the condition of the premises induced the defendant to execute the leases. Execution of the leases by the parties, occupation of the premises by the defendant, and nonpayment by it of the rent for the period covered by the declaration, were admitted. The trial judge found specifically ‘that the defendant vacated the premises for business reasons and not because the premises were unfit for occupancy,’ but made no finding as to the time the premises were vacated, and found for the plaintiff.

The judge excluded certain evidence offered by the defendant and refused to rule as requested by the defendant. He refused to rule that ‘upon all the evidence the defendant is entitled to a finding in its favor’ and that ‘the plaintiff owed the defendant a duty to attempt to let the premises in mitigation of damages,’ and refused to make rulings respecting ‘concealed defects' and the failure of the plaintiff to make known to the defendant the dangerous condition of the premises, on the ground that these rulings were ‘not applicable to the facts proved.’ The questions of law so raised were reported to the appellate division which dismissed the report. The defendant appealed.

1. There was no error in the refusal of the trial judge to rule as requested by the defendant.

It does not appear that either lease contained any express provision whereby liability for rent was conditional upon the premises being fit for occupancy, and no such provision is to be implied. Foster v. Peyser, 9 Cush. 242, 247,57 Am. Dec. 43;Stevens v. Pierce, 151 Mass. 207, 23 N. E. 1006;Hopkins v. Murphy, 233 Mass. 476, 124 N. E. 252, 13 A. L. R. 816. On the admitted facts, therefore, the plaintiff was entitled to a finding unless the defendant has established an affirmative defence. By way of such defences (see Beatty v. Fishel, 100 Mass. 448;Milliken v. Thorndike, 103 Mass. 382;Smith v. Tennyson, 219 Mass. 508, 512, 107 N. E. 423, Ann. Cas. 1916B, 121; Hopkins v. Murphy, supra) the defendant contends, in substance, (a) that at the time of the letting the plaintiff concealed from the defendant dangerous defects in the premises known to the plaintiff and not discoverable by the defendant,that such concealment was fraudulent and that the defendant was induced thereby to execute the leases, and (b) that subsequently, by reason of the dangerous condition of the premises, the defendant was evicted therefrom.

For support of these defences the defendant relies upon testimony of the superintendent of the building ‘that water had come into the basement of the building * * * for many years prior to the execution of the leases; that there was installed long before the defendant took the premises a system or attachment for the purpose of ridding the basement of water; that this system of pipes and valves was under a wooden floor above the floor of the basement, and that the means of access to the system was through a trap door in said floor; that to an ordinary observer coming in this basement this system and attachment would not be visible, and such observer would see nothing but the wooden floor itself’; and, upon testimony of the defendant's representative, that the brokers who acted for the plaintiff in leasing the premises told him ‘nothing about the conditions in the basement’; that ‘prior to the letting he simply walked through the * * * building and saw nothing out of the ordinary about the basement; * * * that in 1925 he had trouble with the water coming up through said wooden floor’; that the water continued to come into the basement from time to time during the following years, and that time to time he complained to the superintendent and in 1928 complained to the brokers. There was no evidence of false representations by the plaintiff of the condition of the premises. Nor was there any evidence that the defendant vacated the premises prior to June, 1929, though there was testimony that in May of that year it attempted to secure a subtenant.

Obviously the system of pipes and valves for ridding the basement of water was not in itself, on the evidence, a defect or dangerous condition. The existence of this system and concealment thereof from the defendant would be material only as they tended to show that water came into the basement and that this fact was concealed from the defendant. But, even if it is assumed in favor of the defendant-as we do not decide-that water coming into the basement could be found to be a defect and a source of danger, the evidence, if believed, did not require a finding that the condition of the basement in this respect could not have been discovered readily by the defendant on examination. In the absence of proof of this fact, it was not shown that there was any concealed defect or any condition which should have been made known to the defendant by the plaintiff. Bowe v. Hunking, 135 Mass. 380, 384, 385,46 Am. Rep. 471;Cowen v. Sunderland, 145 Mass. 363, 14 N. E. 117,1 Am. St. Rep. 469;Booth v. Merriam, 155 Mass. 521, 30 N. E. 85;Mansell v. Hands, 235 Mass. 253, 254, 255, 126 N. E. 391, 13 A. L. R. 835. The refusal of the judge, therefore, to make the rulings requested as to concealed defects and failure of the plaintiff to make known to the defendant the dangerous condition of the premises, because ‘not applicable to the facts proved,’ was proper. John Hetherington & Sons, Ltd., v. William Firth Co., 210 Mass. 8, 18, 95 N. E. 961. It follows, also, that it...

To continue reading

Request your trial
13 cases
  • 275 Wash. St. Corp. v. Hudson River Int'l, LLC
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 30, 2013
    ...absence of any provision otherwise”). See also Locke v. Fahey, 288 Mass. 341, 343, 193 N.E. 26 (1934); Fifty Assocs. v. Berger Dry Goods Co., 275 Mass. 509, 514, 176 N.E. 643 (1931); Sutton v. Goodman, 194 Mass. 389, 394–395, 80 N.E. 608 (1907). See generally G. Warshaw, Massachusetts Landl......
  • Gruman v. Investors Diversified Services
    • United States
    • Minnesota Supreme Court
    • June 22, 1956
    ...Sharp, La.App., 44 So.2d 221; Enoch C. Richards Co. v. Libby, 136 Me. 376, 10 A.2d 609, 126 A.L.R. 1215; Fifty Associates v. Berger Dry Goods Co., Inc., 275 Mass. 509, 176 N.E. 643; Jennings v. First Nat. Bank, 225 Mo.App. 232, 30 S.W.2d 1049; Merrill v. Willis, 51 Neb. 162, 70 N.W. 914; He......
  • In re Fashion World, Inc.
    • United States
    • U.S. Bankruptcy Court — District of Massachusetts
    • November 15, 1984 which the defendants are legally bound without any specific agreement depending upon the circumstances, Fifty Associates v. Berger Dry Goods Co., 275 Mass. 509, 176 N.E. 643 (1931); Edmands v. Rust & Richardson Drug Co., 191 Mass. 123, 77 N.E. 713 (1906); Stavisky, 34 Mass. Practice, Lan......
  • Atkinson v. Rosenthal
    • United States
    • Appeals Court of Massachusetts
    • August 25, 1992
    ...common law there was no duty by a landlord to mitigate damages if a tenant vacated the leased premises. Fifty Assocs. v. Berger Dry Goods Co., 275 Mass. 509, 514, 176 N.E. 643 (1931). A lease, after all, was the grant of an estate in land, and the landlord owed the tenant only quiet enjoyme......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT