But even then, a breach of his obligation does not render him liable in an action of tort for his negligence. Dustin v. Curtis, 74 N.H. 266; Petroski v. Mulvanity, 78 N.H. 252. "The rule is otherwise, however, if the landlord, being under no contractual duty to repair the demised premises, chooses nevertheless to undertake that work . . ."

The further evidence that the defendant Barnard, some three months before the accident to Alice, promised Julia that he would make repairs to the platform as soon as he had the money to do so and that he authorized her to obtain estimates of the cost thereof, is, upon principle, of no greater value to show control than evidence of repairs themselves and, upon authority, provides no basis for an action of this sort. Dustin v. Curtis, 74 N.H. 266; Petroski v. Mulvanity, 78 N.H. 252. The evidence that Barnard had the final and unqualified decision on the question of what outside repairs should be made is also without effect upon the issue. The reason for this is that decisions of this nature are normally retained by the landlord as an incident to his ultimate ownership, and point no more clearly toward a permanently retained control than toward a right reserved by the landlord to pass upon how his property shall be maintained. It is fully as ambiguous as evidence of repairs made or promised.

It is "the well-settled rule that a landlord is under no legal duty to repair the leased premises" (Gobrecht v. Beckwith, 82 N.H. 415, 417, and cases cited), provided, of course, he is not so obligated by the express terms of the tenancy. But even then, a breach of his obligation does not render him liable in an action of tort for negligence. Dustin v. Curtis, 74 N.H. 266; Petroski v. Mulvanity, 78 N.H. 252. The rule is otherwise, however, if the landlord, being under no contractual duty to repair the demised premises, chooses nevertheless to undertake that work. "The person voluntarily and gratuitously making repairs upon another's premises, whether as landlord or in any other capacity, whether the premises are occupied by his tenant or by an owner, is . . . bound to take reasonable care therein, so that his act may not endanger those whom he should expect to use the premises and if he creates a danger and that danger results in injury, he is liable therefor."

By his third, fourth and fifth requests the defendant sought to have the court apply to this situation the well-settled rule that a landlord is under no legal duty to repair the leased premises, and that in the absence of warranty or deceit the tenant takes the premises as he finds them and cannot recover against the landlord for injuries sustained by reason of defects therein. Marston v. Andler, 80 N.H. 564; Petroski v. Mulvanity, 78 N.H. 252; Clark v. Sharpe, 76 N.H. 446; Dustin v. Curtis, 74 N.H. 266; Cate v. Blodgett, 70 N.H. 316; Towne v. Thompson, 68 N.H. 317. In all the cases where this rule has been applied, the accident happened because of defects in the leased premises themselves which had passed out of the control of the landlord and into the possession of the tenant.

It is an action for negligence. The only question presented by the evidence upon the issue of negligence is this: did the defendant in leasing the plaintiff the tenement, practice deceit upon her, and did she thereby suffer injury? "It is generally held that a tenant, a member of his family, or his guest, cannot sue a landlord in tort for personal injuries due to his omission to repair premises which have passed into the possession and control of the tenant, even if the landlord has agreed to make repairs." Dustin v. Curtis, 74 N.H. 266, 269, and cases cited; Petroski v. Mulvanity, 78 N.H. 252; Barrett v. Company, ante, 354. "The only duty the law imposes on a landlord for the benefit of his tenants, in so far as the leased premises are concerned, is that of not deceiving them as to the dangers incident to their use of which he does and they do not know."

That no action sounding in tort can be maintained for such a fault is the settled law of this jurisdiction. Dustin v. Curtis, 74 N.H. 266; Petroski v. Mulvanity, 78 N.H. 252. But the case has been argued upon the theory that something more than a mere breach of an ordinary private agreement was involved, and as the defect in the declaration is curable by amendment the question whether upon the evidence the plaintiff could go to the jury upon any theory of liability has been considered.