French v. Pirnie

• Decision Date: 02 March 1922
• Parties: FRENCH v. PIRNIE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 489

134 N.E. 353

FRENCH

v.PIRNIE.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1922.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by Grace P. French against W. Bruce Pirnie and trustees for rent and for damages for injury to the leased premises. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

The damages were claimed for carelessness and neglect in allowing the hot water heater to become frozen and to burst. Defendant filed a general denial, alleged a waiver of the lease by oral agreement, and filed a declaration in set-off for repairs to the hot water heater to make the premisestenantable. The court after hearing evidence as to the repairs, excluded it and refused to admit other similar evidence, directed a verdict for plaintiff on the declaration in set-off, and charged that unless there had been a waiver of the lease the unpaid rent was due without any abatement.Joseph G. Bryer, of Boston, for plaintiff.

Byron W. Reed, of Boston, for defendant.

CROSBY, J.

The plaintiff seeks to recover rent due, under the terms of a written lease from her to the defendant, and damages for injury to the leased premises caused by the defendant's alleged carelessness and neglect in allowing the hot water heater to become frozen and burst, and as a result of which water ran over the walls and ceilings. The defendant filed a declaration in set-off, alleging that the premises became uninhabitable owing to the bursting of the heater; that he made repairs upon it and also made other necessary repairs after he had notified the plaintiff to put the premises in proper condition for use and occupation, in accordance with the terms of the lease; and that the plaintiff refused to make such repairs.

The defendant testified:

‘That the heater was not frozen, but that a small pipe in the attic leading to the expansion tank was frozen, owing to the extreme cold, in spite of the fact that the house was normally warm, and that the water rose in the pipes as the heater which he had just stoked, grew hotter, until it reached the frozen pipe, when the heater burst from pressure. He further testified that the plaintiff came to the house and that he explained the accident to her, and requested her to repair the heater and that she refused to do so, giving as reason that the accident was due to his negligence in not keeping a sufficient fire in the heater.’

The lease contained the usual covenants:

That the lessee would ‘quit and deliver up the premises to the lessor, her attorney, peaceably and quietly, at the end of the term, in as good order and condition, reasonable use and wearing thereof, fire and other unavoidable casualties excepted, as the same now are, or may be put into by the lessor,’ and ‘that in case the premises, or any part thereof during said term, be destroyed or damaged by fire or other unavoidable casualty so that the same shall be thereby rendered unfit for use and habitation * * * the rent * * * reserved, or a just and proportional part thereof * * * shall be suspended or abated until the said premises shall have been put in proper condition for use and habitation by the said lessor.’

The presiding judge stated:

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