Marston v. Andler

• Decision Date: 06 March 1923
• Docket Number: No. 1850.,1850.
• Court: New Hampshire Supreme Court
• Parties: MARSTON v. ANDLER.

122 A. 329

MARSTON

v. ANDLER.

No. 1850.

Supreme Court of New Hampshire. Rockingham.

March 6, 1923.

Transferred from Superior Court, Rockingham County; Branch, Judge.

Case by Claribel E. Marston against Kolman Andler for injuries by alleged defect in floor of tenement occupied by plaintiff as defendant's tenant. Verdict for plaintiff. Defendant's motion for a nonsuit at close of plaintiffs evidence was denied, and the defendant excepts. Case transferred. Exceptions sustained. Judgment for defendant.

Sewall & Waldroh, of Portsmouth, for plaintiff.

Ernest L. Guptill and Bartlett & Mitchell, all of Portsmouth, for defendant.

PLUMMER, J. "There is no warranty implied in the ordinary contract of letting that the premises are reasonably safe or suitable for the uses intended, or that the landlord will keep the leased premises in repair; and in the absence of any warranty, or of deceit or fraud on the part of the landlord, the lessee takes the risk of the quality of the premises, and cannot make the landlord answerable for any injuries sustained by him during his occupancy, by reason of the defective condition of the premises, or even of their faulty construction." Towne v. Thompson, 68 N. H. 317, 319, 44 Atl. 492, 493 (46 L. R. A. 748).

This action is not for a breach of a warranty, nor for the nonfulfillment of an agreement to repair. It is an action for negligence. The only question presented by the evidence upon the issue of negligence is this r Did the defendant in leasing the plaintiff the tenement practice deceit upon her, and did she thereby suffer injury?

"It is generally held that a tenant, a member of his family, or his guest, cannot sue a landlord in tort for personal injuries due to his omission to repair premises which have passed into the possession and control of the tenant, even if the landlord has agreed to make repairs." Dustin v. Curtis, 74 N. H. 266, 269, 67 Atl. 220, 222 (11 L. R. A. [N. S.] 504, 13 Ann. Cas. 169), and cases cited; Petroski v. Mulvanity, 78 N. H. 252, 99 Atl. 88; Barrett v. New England Telephone & Telegraph Co., 80 N. H. 354, 117 Atl. 264, 23 A. L. R. 947. "The only duty the law imposes on a landlord for the benefit of his tenants, in so far as the leased premises are concerned, is that of not deceiving them as to the dangers incident to their use of which he does and they do not know." Kambour v. Railroad, 77 N. H. 33, 46, 86 Atl. 624, 631 (45 L. R. A. [N. S.] 1128).

In this case the defect or disrepair in...