Cummings v. Ayer

Braley, J. The order sustaining the demurrer was not accompanied by any direction that judgment thereon should be entered for the defendant, and until this had been done the plaintiff’s right of appeal to this court was in abeyance. R. L. c. 173, § 96. Fay v. Upton, 153 Mass. 6. Under the practice adopted in this case by the Superior Court, after the demurrer was sustained an opportunity was afforded the plaintiff to amend her declaration if she desired, while the defendant was at liberty to move for judgment if an amendment was not seasonably filed or allowed, and no injustice was suffered by either party by the course pursued. While the question of law raised by the demurrer is before us properly, the plaintiff’s appeal cannot be sustained. The declaration fails to allege the violation of any agreement made between the parties themselves to keep the demised premises in tenant-able repair. Bowe v. Hunking, 135 Mass. 380, 383. Cowen v. Sunderland, 145 Mass. 363, 364. It also fails to show that if the defendant ever entered into any enforceable contract with the plaintiff’s father to make such repairs and has broken the agreement, that there has been a breach of any duty owed to the plaintiff. If the allegations made are treated as setting out an executoiy contract to that effect, and its breach, the mere want of repair [294] of the floor and nothing more is not sufficient. Tuttle v. Gilbert Manuf. Co. 145 Mass. 169, 175. In order to hold the defendant liable it must appear by proper averments that notice was given to him of its condition or that he knew of it and neglected to make the necessary repairs, or that he agreed to repair without notice, which also is not averred. Hutchinson v. Cummings, 156 Mass. 329. McLean v. Fiske Wharf & Warehouse Co. 158 Mass. 472, 474. Marley v. Wheelwright, 172 Mass. 530, 533. No neglect of any duty owed by the defendant to the plaintiff’s father under the contract therefore is alleged, from which a cause of action owing to the defendant’s negligence would have arisen in his favor. The plaintiff as a member of his household has no broader right. Moynihan v. Allyn, 162 Mass. 270. Judgment affirmed.