Framingham Homes, Inc. v. Dietz

Lttmmus, J.

In this case the briefs refer us to G. L. (Ter. Ed.) c. 40, §§ 42A and 42F, which make charges for water supplied at the request “of the owner or tenant” a lien on the real estate, and give to “an owner of real estate who, in order to prevent the imposition of a hen thereon or to discharge the same, has paid charges for water furnished to a tenant or other person who was bound to pay the same,” a right to recover over from the tenant. See Mechanics Savings Bank v. Collector of Taxes of Holyoke, 299 Mass. 404. But these statutes cannot be considered, for they apply only in municipalities which accept them, and there is nothing to show that Framingham, where the land in this case was situated, ever accepted them. Handside v. Powers, 145 Mass. 123, 128. The plaintiff’s brief refers us also to the Framingham water supply act, St. 1906, c. 526, which contains the following section: “Section 5. The owner of any tenement, building or other property, the occupants of which use water supplied under the provisions of this act, shall be liable for the payment of such water, and in case of non-payment by him, the sums due therefor may be collected in an action of contract brought in the name of the town of Framingham.” This, we think, was substantially an act of incorporation, of which we take judicial notice. G. L. (Ter. Ed.) c. 233, § 74. American Steel & Wire Co. v. Bearse, 194 Mass. 596, 600, 601. Brodsky v. Fine, 263 Mass. 51, 54. Bleck v. East Boston Co. 302 Mass. 127, 128.

The defendant in this case hired a tenement as a tenant at will from the plaintiff to live in with his family. The plaintiff paid to the town of Framingham charges for water used by the defendant, and brings this action of contract to recover the amount. The plaintiff sent the water bills, received from the town, to the defendant, who made no reply. There was no evidence of any custom in the town or elsewhere as to whether the landlord or the tenant should pay water bills. There was no agreement between the parties as to paying water bills. The judge found for the defendant, and reported the case to the Appellate Division.

The defendant was under no obligation to reply when sent the water bills, and his failure to do so did not show an agreement on his part to pay them, under the doctrine of Milliken v. Warwick, 306 Mass. 192, 197, and cases there cited. No contractual or statutory duty on the part of the defendant to pay for water as between the parties is shown. The three requests relied on by the plaintiff were rightly refused.

Order of Appellate Division dismissing report affirmed.