Booth v. Merriam

30 N.E. 85, 155 Mass. 521, 1892 Mass. LEXIS 364

• Court: Massachusetts Supreme Judicial Court
• Decided: February 24, 1892
• Status: Published

Opinion

Knowlton, J.

In an ordinary lease of a dwelling-house there is no implied covenant that the premises are in good repair or fit for habitation. “ The rule of caveat emptor applies, and it is for the lessee to make the examination necessary to determine whether the premises he hires are safe, and adapted to the purposes for which they are hired.” Cowen v. Sunderland, 145 Mass. 363. Stevens v. Pierce, 151 Mass. 207. If there is a concealed defect that renders the premises dangerous which the tenant cannot discover by the exercise of reasonable diligence, of which the landlord has or ought to have knowledge, it is the landlord’s duty to disclose it,-and he is liable for an injury which results from his concealment of it. Cowen v. Sunderland, ubi supra. Minor v. Sharon, 112 Mass. 477. Bowe v. Hunking, 135 Mass. 380. Martin v. Richards, ante, 381.

The plaintiff contends that this case shows the existence of such a defect, and that it is like Qowen v. Sunderland, in which it appeared that there was a cesspool covered with decayed boards and earth four to six inches deep, on which grass and weeds were growing, in a yard hired by the plaintiff, and that it had been repaired with old boards some time before by the defendant’s direction. The case at bar differs from that in important particulars. There was an iron cover set in a wooden frame which covered the cesspool, and was level with the surface of the ground, thereby disclosing to everybody that there was a covered excavation there designed for use. The accident happened solely because the frame was old and out of repair, and there is nothing to show that its condition was not easily discoverable on examination, or that the defendant had actual knowledge of its condition, or was culpably responsible for it. It was as much the duty of the plaintiff, when she hired the house and yard, to examine the premises and ascertain whether they were in such repair that she could safely use them, as of the defendant. The case is similar to Bowe v. Hunking, ubi supra, and it falls within the general rule that a tenant cannot recover for an injury received by reason of the want of repair of the premises hired. Exceptions overruled.