RICHARD W. BOWMAN vs. REALTY OPERATORS CORPORATION.

RICHARD W. BOWMAN vs. REALTY OPERATORS CORPORATION.

336 Mass. 395

October 9, 1957 - November 13, 1957

Barnstable County

Present: WILKINS, C.J., WILLIAMS, COUNIHAN, WHITTEMORE, & CUTTER, JJ.

A finding of breach of an implied agreement by one renting a furnished cottage for a summer that it was fit for habitation at the time of the letting was not warranted by evidence which showed merely the occurrence of a fire in the kitchen with resulting damage to property of the tenant and left the cause of the fire conjectural.

CONTRACT OR TORT. Writ in the Superior Court dated August 14, 1953.

Following a verdict for the plaintiff at the trial before Beaudreau, J., the judge entered a verdict for the defendant under leave reserved. The plaintiff alleged exceptions.

Daniel J. Fern, for the plaintiff.

William K. Mone, for the defendant.

WILLIAMS, J. The plaintiff and his wife, with another family, jointly rented a furnished cottage from the defendant in Mashpee for the summer of 1953. The time of renting and the length of the plaintiff's occupancy do not appear. On June 20 there was a fire in the kitchen and property of the plaintiff was damaged to the extent of $993.63. In this action the plaintiff seeks to hold the defendant liable on the theory of a breach of an implied agreement that the cottage was fit for habitation. See Dutton v. Gerrish, 9 Cush. 89 , 94; Ingalls v. Hobbs, 156 Mass. 348 , 351; Hacker v. Nitschke, 310 Mass. 754 , 756-757; Ackarey v. Carbonaro, 320 Mass. 537 , 540.

The kitchen where it could be found that the fire originated was equipped with a gas stove and an electric refrigerator. The gas stove had been used on the morning

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of the fire but at the time it started the stove was not in use. The cause of the fire was conjectural. The evidence of the fire itself did not warrant an inference that it was caused by some defect in the premises, particularly in the stove or refrigerator, which existed at the time of the letting. Bolieau v. Traiser, 253 Mass. 346 , 349-350. Davenport v. Squibb, 320 Mass. 629 , 632-633. Wardwell v. George H. Taylor Co. 333 Mass. 302 , 304-305, and cases cited. There was no error in the entry of a verdict for the defendant under leave reserved.

Exceptions overruled.