This is an action to recover damages for the breach of an alleged express agreement to put in ordinary tenantable repair, so that the same could be used for light manufacturing purposes, certain real estate let by the defendant to the plaintiffs. There was conflicting evidence as to whether such an agreement was made.
1. As to the ruling requested at the close of the case, it is sufficient to say that, although it was not given in the terms requested, it was given in substance. The jury were expressly told that, in order to recover, the plaintiffs must prove by a fair preponderance of the evidence the express contract upon which they relied ; and that in the absence of an express contract there is- no liability upon a landlord to make repairs or to put a tenement in a proper condition for occupancy. The judge even explained the rule by an apt illustration: Upon this point the charge was clear, accurate, and unusually full.
2. One Shaw, called by the plaintiffs, after stating that in the performance of his duties as a building inspector in the city of Boston he visited the tenement for the purpose of seeing whether it was occupied, and if so, whether the occupants needed any protection, was asked to state what was the condition as to protection for tenants in the building, and what, if anything, was required, and answered finally that “one purpose would require one provision, another purpose would require another.” To this question and" answer the defendant excepted.
The question was certainly proper. The condition of the premises for any purpose was material on the question of dam*545ages, if for no other reason. Between the time the question was first put and the time of the answer, a colloquy as to its admission took place between the counsel and the judge, by which the attention of the witnesses apparently was somewhat distracted, and so the answer was not very direct. It is plain that it was intended simply as a preliminary statement, and one cannot conceive how it could in any way have been prejudicial to the defendant.
Exceptions overruled.