The plaintiff claimed that the landlord retained control of the roof and of the unfinished space under the roof, but there was no evidence of any express reservation thereof in letting. The plaintiff excepted because the court did not send to the jury the question of the control of the roof, and instruct them that, if they found the roof was under the control of the defendants, the plaintiff could recover. It not appearing that the roof was under the control of the defendants, the court was justified in refusing to submit that question to the jury or give instructions in relation thereto. In his charge to the jury the court said: "It is suggested to me that one of the last witnesses on behalf of the plaintiff testified that the defendant, Dr. Mulvanity, stated that he would `fix the premises all right.' If such is the testimony, no liability would occur in this action by reason of the failure to fix it all right, because that is a pure matter of contract, and this action is based upon the negligent performance of a legal duty imposed by law, rather than one that attaches by reason of any contract. Even if a landlord does agree to repair the premises, and fails to do so, in an action for negligently undertaking the duty, no liability attaches by reason of the agreement." To this statement the plaintiff excepted. No error was committed by the court in giving this instruction. Dustin v. Curtis, 74 N.H. 266.
Exceptions overruled.
All concurred. *Page 254