LUCY WALSH v. FRED SCHMIDT.

Knowlton, C. J. This is an action of tort, to recover for personal injuries received by the plaintiff while standing upon a chair on the back piazza of a dwelling house, washing a window. One leg of the chair broke through the floor near the wall of the building, and the plaintiff fell. The defendant was the owner of the house which the plaintiff's husband occupied as his tenant. The declaration is for negligence of the defendant in allowing the floor to become rotten and defective. The plaintiff and her husband and his family had lived in the house about five months at the time of the accident. The question before us is whether there was evidence on which the plaintiff could recover. [Note p406]

It is plain that there was no implied contract or duty on the part of the defendant to keep the premises in a safe condition while they were in possession of the tenant. Galvin v. Beals, 187 Mass. 250. Miles v. Janvrin, 196 Mass. 431; S. C. 200 Mass. 514. There was no allegation or evidence that there was any fraud on the part of the defendant, or any liability for the concealment of a dangerous condition of which he had knowledge. Clogston v. Martin, 182 Mass. 469. Booth v. Merriam, 155 Mass. 521. O'Malley v. Twenty-Five Associates, 178 Mass. 555. Indeed, the evidence tended to show not only that the defendant had no knowledge that the floor was not safe at the time of the letting, but that there was nothing in the appearance of it to indicate that it was unsafe.

There was no implied warranty that the house or the piazza floor was safe and fit for occupancy at the time of the letting. Bowe v. Hunking, 135 Mass. 380. Booth v. Merriam, 155 Mass. 521. Turtle v. Gilbert Manuf. Co. 145 Mass. 169.

In the plaintiff's declaration there is an averment "that the defendant expressly warranted the premises to be fit and safe

Page 407

for the occupancy of the plaintiff's husband and family." The claim of a right to recover upon this averment presents the only question in the case which is in the least doubtful. Unless there was an express warranty covering the condition which caused the accident, it is plain that there is no cause of action. The testimony of the plaintiff on this point was that the defendant "said he fixed the house all right; it was fit for anybody to live in it." This was before the contract of hiring was made. She testified that he said "he would fix it up to live in, fix it up in good shape. My husband asked him what kind of a house it was, if it was all right; he said 'Yes.' . . . He said it be all right and a good place to live. He kept talking to my husband, I didn't pay no attention." The testimony of the plaintiff's husband was of similar purport. It appeared that both the plaintiff and her husband looked over the house and examined it as much as they chose. They passed over this piazza several times a day during the five months before the accident. The condition of the floor could have been as easily discovered at any time by the plaintiff or her husband as by the defendant. The floor was open to inspection from below as well as from above. Neither the plaintiff nor her husband ever complained to the defendant of the condition of the floor.

The rule caveat emptor applies to the purchase and hiring of real estate, and the question before us is whether this testimony, having reference to the subject and nature of the conversation between the parties, would warrant a finding that the defendant expressly warranted the house to be in perfect condition in all its parts, so that no accident could happen through any imperfection in it, from any proper use that could be made of it. We are of opinion that it would not. The statement was that the house was good, safe and fit to live in. This was of the most general character. It was in the nature of representation and recommendation, or "dealer's talk," which should be treated as the expression of an opinion about the effect of conditions which in general were open and obvious, rather than as a warranty as to the details of construction or soundness. As to these matters the plaintiff and her husband could observe and judge as well as he could. It is not to be supposed that they took the house, relying upon these representations as express stipulations in a

Page 408

contract which made the relations of the parties in this respect entirely different from those of ordinary landlords and tenants. We are of opinion that the jury were not warranted in finding that there was an express warranty of the soundness and strength of every part of the house, including the floor of the piazza, to such a degree that it would not give way in any place under circumstances of peculiar and unusual strain upon it.

Another question, which has not been argued, is whether, if there were an express warranty in the contract with the plaintiff's husband, this plaintiff could maintain an action of tort founded on a contract to which she was not a party, for an accident that occurred five months afterwards, when the defendant was under no legal obligation to keep the premises in repair. The case differs materially from Farrell v. Manhattan Market Co. 198 Mass. 271, 274. Upon this part of the case we express no opinion.

The exceptions must be sustained, and under the St. 1909, c. 236, the entry must be

Judgment for the defendant.

The case was submitted on briefs.

F. A. Ballou, for the defendant.

No counsel appeared for the plaintiff.