Stewart v. Cushing

B roley, J. By the terms of the contract of letting, the landlord neither retained control over the system of drainage, nor agreed to make repairs for the tenant’s use, if it became defective during the tenancy. If the defendants had assumed, but neglected to perform this duty after notice that repairs had become necessary, the plaintiff’s remedy would have been an action for breach of contract. Cummings v. Ayer, 188 Mass. 292. Miles v. Janvrin, 196 Mass. 431; S. C. 200 Mass. 514. It appeared in evidence that, after complaints by the plaintiff that the sink drain had become obstructed and that a noxious odor was noticed in the basement, the defendants caused the pipe to be examined and the obstruction removed, and, the odor continuing, they again sent plumbers to ascertain the cause. But as these repairs or examinations were voluntary and gratuitously made, no liability was imposed upon them, unless the work was negligently performed. Gill v. Middleton, 105 Mass. 477. Kearines v. Cullen, 183 Mass. 298. Phelen v. Fitzpatrick, 188 Mass. 237. If subsequently as the result of an investigation by the board of health, to whom the plaintiff complained, it was ascertained, upon a removal of the floors in the basement, that the odor causing her sickness emanated from a break in the elbow of the drain pipe, the uncontradicted evidence negatived any connection whatever between the defect and the acts of the defendants’ workmen. Galvin v. Beals, 187 Mass. 250, 253. The evidence offered, that in removing foreign substances a usual method was to break holes in pipes, which were after-wards patched, was inadmissible. To prove what other plumbers might have done did not furnish proof that the defendants’ plumbers had disturbed or broken the elbow. French v. Sabin, 202 Mass. 240. The plaintiff having failed to offer any evidence of the defendants’ negligence, her exceptions must be overruled. So ordered.