This action of tort for negligence is before us on the defendant's exceptions. The landlord admittedly was at all relevant times in control of the rear porches and stairways of premises owned by her, consisting of a three-story building with stores on the first floor and apartments on the second and third floors, on State Street, Springfield. On conflicting evidence, viewed most favorably to the plaintiffs, the jury could find the following: The minor plaintiff's aunt had been a tenant on the third floor of the premises since 1956. When the tenancy began the back porch was approximately level and in good condition. Thereafter, due to progressive deterioration, the porch began to pull away from the house and at the time of the accident the floor of the porch slanted or pitched at least four inches. On November 18, 1962, the minor plaintiff, then two years old, her mother, and other persons, including several children, were guests of the tenant. As she was leaving, the child stepped down from the porch, took two steps, leaned forward and fell to the ground through an opening between the railings at the top of the steps which led down to the second floor porch. Predicated on these facts the jury could reasonably conclude that the change in the pitch of the porch, in relation to its proximity to the opening at the head of the steps, created a hazardous condition to invitees of the tenant such as the minor plaintiff and was the proximate cause of her injury. See Marquis v. John Nesmith Real Estate Co. 300 Mass. 203 , 205, 206; Dreher v. Bedford Realty, Inc. 335 Mass. 385 , 389. We find no reason to reverse the ruling of the judge on the qualifications of one who has spent his life in the construction business, and was completely familiar with apartment houses with open porches, to give his opinion on the progress of timber rot in such porches. The allowance of the defendant's motion for a mistrial because of remarks of the judge is not required as matter of law.
This is a bill for a declaratory decree by a bonding company against I. Fred DiCenso and J. Howard Beck, to determine the duties and liabilities of the parties under DiCenso's agreement to construct a building for Beck and under a surety bond covering the construction agreement. Each of the defendants filed a counterclaim. The case was referred to a master. The trial judge entered an interlocutory decree confirming the master's report. A final decree was entered from which DiCenso appeals. The construction agreement contained a provision that in the event of a breach by the owner, the agreement could be terminated by the contractor giving the owner seven days written notice of the contractor's intention to terminate the
agreement. On October 20, 1958, DiCenso notified Beck that Beck was in breach of the agreement and "that he considers himself to be free of any further obligation to continue with or complete the construction of the . . . building." DiCenso contends that Beck's failure to comply with the schedule of payments was a "substantial breach of contract [and therefore] he is not entitled to damages." The record, however, discloses that except for the breach of the payment on October 17, 1958, each time Beck was delinquent in making progress payments DiCenso not only accepted the payments, but continued to perform the construction agreement. Therefore, although Beck had not made the payments on schedule prior to October 17, DiCenso's actions constituted a waiver of those breaches. See Carrig v. Gilbert-Varker Corp. 314 Mass. 351 , 355; Wenzel & Henoch Constr. Co. v. Metropolitan Water Dist. 115 F.2d 25 (9th Cir.); United States v. Americo Constr. Co. Inc. 168 F. Supp. 760 (D. Mass.); Corbin, Contracts, revised, Section 756. DiCenso also argues that if his failure to give seven days notice of termination (as required by the agreement) on October 20, 1958, is a breach, "it is not prejudicial because . . . Beck did nothing to cure his own breaches during the seven days." We believe this argument to be untenable. DiCenso, by failing to comply with the requirement of giving seven days notice of termination, committed a substantial breach of the contract and thus there was no further obligation on Beck to tender payment. Finally, we discern no basis for DiCenso's contention that the amount of damages assessed by the master "bears no relationship" to DiCenso's breach of the termination provision. The master awarded Beck an amount equal to the difference between the contract price and the total cost of completing the building. Ficara v. Belleau, 331 Mass. 80 . There was no error.