Mutual Coat Corp. v. Dorsyl Realty, Inc.

195 N.E.2d 512, 346 Mass. 777, 1964 Mass. LEXIS 873

Opinion

Order sustaining demurrer affirmed. Judgment for the defendant. In this action by a tenant against its landlord for loss of furs by theft, the declaration, on demurrer, fails as to the first count, in tort, because the mere relationship of landlord and tenant imposes no duty on the landlord to secure entrance doors. Teall v. Harlow, 275 Mass. 448, 452. The second count, in contract, fails because there is no allegation of an express contract, written or oral, whereby the landlord assumed the duty to secure entrance doors. Pollock v. New England Tel. & Tel. Co. 289 Mass. 255, 258. G. L. c. 231, § 7, Second. G. L. c. 231, § 7, Eleventh. In oral argument, the plaintiff conceded that the third count, in tort, was demurrable. The remaining count, in contract, fails because there is no allegation, essential to the existence of a bailment, that possession of the furs was delivered to, and accepted by, the landlord. D. A. Schulte, Inc. v. North Terminal Garage Co. 291 Mass. 251, 256-258. Williston, Contracts (2d ed.) § 1032.

Marvin K. Rasnick for the plaintiff. Lawrence A. Sullivan (Henry P. Monaghan with him) for the defendant.