Bertie v. Flagg

Holmes, J. The declaration in this case alleges that the defendant was the owner and landlord of a house occupied by the plaintiff’s intestate as tenant at will; that in the course of making other repairs he discovered that the drain was in bad condition and needed certain repairs; that he neglected to repair it, covered it up, and did not inform the intestate; and that “ by reason of said negligence . . . the plaintiff’s intestate, being ignorant of the condition of said drain, contracted typhoid fever ” from it. The rest is only coloring. It is not alleged that the landlord undertook to repair the drain and did the work improperly, or that he misled the tenant by any representation on the matter. It is not argued that a landlord, as such, is bound to make repairs which he has not agreed to make, or to remedy defects 506 which arise in the course of a tenancy. McKeon v. Cutter, 156 Mass. 296. But it is said that the defendant is liable for not disclosing the defect, on the same principle that a man was held liable for letting a dwelling-house known by him to be infected with small-pox without disclosing it, in Minor v. Sharon, 112 Mass. 477. See also Cowen v. Sunderland, 145 Mass. 363; Cutter v. Hamlen, 147 Mass. 471; and Martin v. Richards, 155 Mass. 381. But this defect was an ordinary defect in the drain in use on the premises, and the danger was the ordinary danger from that source. It was discovered in the course of a tenancy at will. We are of opinion that the landlord was under no obligation to repair it, and if we are to take it that the plaintiff was ignorant of the defect as well as of the failure to repair it, notwithstanding the allegation that, the defendant “ refused ” to make the necessary repairs, we are of opinion that he was under no obligation to disclose it. Demurrer sustained.