Tuttle v. George H. Gilbert Mfg. Co.

• Decision Date: 20 October 1887
• Citation: 13 N.E. 465,145 Mass. 169
• Parties: TUTTLE v. GEORGE H. GILBERT MANUF'G CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 169

13 N.E. 465

TUTTLE v. GEORGE H. GILBERT MANUF'G CO.

Supreme Judicial Court of Massachusetts, Worcester.

October 20, 1887

COUNSEL

Rice King & Rice, for plaintiff.

This action belongs to that class of actions which, though they have their basis in a parol contract, nevertheless may be treated as actions of tort. Negligent performance of contracts, or the unexcused neglect to perform a contract, "is a breach of duty that may be treated as involving liability ex delicto or ex contractu at the election of the injured party." From its neglect to perform its legal obligation to the plaintiff thus incurred the plaintiff was injured, and for those injuries the defendant is liable in tort. Johnson v. Dixon, 1 Daly, 178. Bigelow, Torts, 263, cites: Marzetti v Williams, 1 Barn. & Adol. 415; Brown v Boorman, 11 Clark & F. 1, 3 Q.B. 511; Robinson v. Threadgill, 13 Ired. 39. The following cases also seem to support the statement of MAULE, J., in Howard v. Shepherd, 9 C.B. 319, namely: "Generally speaking, the law has endeavored to assimulate actions of tort arising out of contracts with actions on contracts, giving the plaintiff the election to adopt either form of remedy." Dickinson v. Winchester, 4 Cush. 120, 121; Ashley v. Root, 4 Allen, 505, 506; Norton v. Doherty, 3 Gray, 373. See, also, Sweeny v. Railroad & N. Co., 10 Allen, 372, and Minor v. Sharon, 112 Mass. 477. See, also, Wood, Landl. & Ten. 923, note.

The facts and the statements of the agent properly amounted to a warranty that, at least, the barn was safe, so far as the floor timbers were concerned. This is a breach of duty of a tortious character, whether the warranty be in regard to the quality of goods and chattels sold, or in regard to the safe condition of the premises. See Norton v. Doherty, supra. All the statements of the defendant's agent would have the effect, equally with an express warranty of safety, at the outset, of lulling the plaintiff into a sense of security, based upon the agent's assurance of safety. As to whether or not the scienter could be satisfactorily proved would be a question for the jury, irrespective of the consideration that the case may be one of that class of cases which would require no more proof of the scienter than lies in the proof of the facts alleged. Similarly, in regard to the question of the agent's intention, that his assurance should be acted upon, this case may be one of the class of cases where, the effect of the false representation being to bring the plaintiff into a business transaction with the defendant, no more proof of the defendant's intention is necessary than proof of that effect. Johnson v. Wallower, 15 Minn. 474, (Gil. 389;) Bigelow, Torts, 30, 31; Add. Torts, (4th Eng.Ed.) 1012-1015. The present case is an exception to the general rule that it is the duty of the tenant and not the landlord to make the repairs on the demised premises; this being considered irrespective of the agreement which was actually made in this case, and in regard to the repairing the floor by new timbers. Had there been no agreement, it would not have been the duty of the tenant to make repairs of so general and substantial a nature as the putting in of new timbers into the barn floor. Tayl.Landl. & Ten. (8th Ed.) § 343. Neither is he liable for the ordinary wear and tear of the premises. Torriano v. Young, 6 Car. & P. 8, note 3; Leach v. Thomas, 7 Car. & P. 327; Horsefall v. Mather, Holt, N.P. 7; Eagle v. Swayze, 2 Daly, 140; Johnson v. Dixon, 1 Daly, 178.

W.S.B. Hopkins and Charles L. Gardner, for defendant.

The obligation which rested on the defendant to make repairs was based entirely upon the express terms of its contract. Gill v. Middleton, 105 Mass. 477; Looney v. McLean, 129 Mass. 33; Bowe v. Hunkling, 135 Mass. 383. No other obligation is alleged in the plaintiff's declaration. It follows that the plaintiff's cause of action arose wholly from a breach of the defendant's contract, or, as alleged in the declaration, from the defendant's neglect and failure to make the repairs which it had contracted to make. It is obvious, then, that the plaintiff's action cannot be maintained in its present form, and this objection was open to the defendant on its answer. Hervey v. Moseley, 7 Gray, 479; Hubbard v. Mosely, 11 Gray, 170. Under our form of pleading, actions of tort embrace (besides trover and actions for penalties) those which were formerly known as actions of trespass, and trespass on the case. Pub.St. c. 167, § 1. Bouvier defines tort as "a wrong, independent of contract." It frequently arises from, and is coincident with, a contract, as in the familiar case of a fraudulent sale. It must, however, be a distinct feature of the contract out of which it grows, and something more than a mere breach of, or failure to perform, such contract, which is all that is alleged in the case at bar. Shear. & R.Neg. 1; Ashley v. Root, 4 Allen, 504; Bishop v. Weber, 139 Mass. 411, 1 N.E. 154. It cannot be contended that the defendant falsely or willfully represented that the premises were safe, because the evidence shows that at most its agent only stated that he so considered them; but even if it were so, it would make no difference, as this is not the cause of action which the plaintiff has set up in his declaration.

OPINION

HORTON C.J.

It is the general rule that there is no warranty implied in the letting of premises that they are reasonably fit for use. The lessee takes an estate in the premises hired, and he takes the risk of the quality of the premises in the absence of an express or implied warranty by the lessor or...