Allen v. Storer

• Decision Date: 03 March 1882
• Parties: William H. Allen v. David H. Storer
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 372

William H. Allen v. David H. Storer

Supreme Court of Massachusetts

March 3, 1882

Argued November 18, 1880

Suffolk.

Bill dismissed.

J. P Healy & J. F. Colby, for the defendant.

W. G Russell & J. P. Treadwell, for the plaintiff.

W Allen J. C. Allen J., absent.

OPINION

W. Allen J.

This is a bill in equity to which the defendant has demurred, and the question is whether the plaintiff has a remedy at law for any wrong alleged in his bill.

The bill alleges in substance that the defendant, in November 1875, demised by indenture to the plaintiff, for the term of twenty years commencing on the first day of January then next, a parcel of land with the old buildings thereon, bounding southerly on a three-foot passageway, together with a free and uninterrupted right of way and passage in, upon, and over said passageway, and with a covenant that the lessee, paying the rent and performing his covenants, should peaceably hold and enjoy the premises without hindrance or interruption by the lessor or any other person. The lessee covenanted to erect a new building on the premises within the first eighteen months of the term, and deposited with the lessor $ 5000 as security, which, by the terms of the lease, was to be repaid to him, or applied on the rent at his option, when he should have expended $ 3000 on the new building within the eighteen months; that the plaintiff entered under the lease, and removed the old buildings, and then first discovered that the passageway was cut off and severed from the land by a brick wall built upon it before the lease, and maintained adversely to the lessor, but not by right; that the passageway was an essential part of the property demised, and a substantial inducement, without which the plaintiff would not have entered into the indenture; that when the plaintiff discovered the existence of the wall, he applied to the defendant to be put into possession of the right of way, and the defendant promised immediately to put him into possession, and relying on that promise the plaintiff proceeded to erect the building at a cost of $ 18,000; that, about ten months after said promise of the defendant, the plaintiff again made a demand to be put into possession of the passageway, and the defendant again promised as before; that again, in March 1880, a like demand was made, and a like promise given; that the defendant has always demanded the rent, and the plaintiff has paid it in full and occupied the premises upon representations of the defendant that he would arrange the matter as to the passageway; that the plaintiff has never been in possession of the passageway, and it is still kept out of the possession of the defendant. The bill offers to surrender the plaintiff's part of the indenture and the premises with all improvements; and prays for a decree that the defendant give up his part of the indenture, and that the same be annulled, and the defendant be decreed to pay back all rents paid by the plaintiff, and the cost of all outlays.

The substantial allegation of wrong on which the plaintiff's case rests is, that the defendant did not put him into possession of the premises intended to be demised; that a part of the premises was held adversely to the lessor, so that he did not have the possession of that part to deliver to the plaintiff, and the lease was void as to that; and the loss of that part materially affects the enjoyment and value of the remaining part. There is the additional allegation, that, after the plaintiff had knowledge of the wrong, he continued to occupy under the lease, and made large outlays in improvements required by the lease, relying on verbal promises of the defendant, which he did not keep. The plaintiff contends that these wrongs give him the right to rescind the contract, and to put himself where he was before it was made, by recovering from the defendant the amounts paid for rents and improvements; and that he cannot avail himself of that right at law, and is entitled to the aid of a court of equity.

We are not called upon to consider whether the plaintiff shows, by the allegations of his bill, that he has the right he claims to annul the lease and recover back the money he has paid. The demurrer may be taken to admit that he has those rights. The bill is founded upon them, and asks, and can support, a decree in his favor only in recognition and enforcement of them. Such rights are legal rights, and are protected and enforced by legal remedies. When the plaintiff found that he had not received possession of the entire premises demised, if he had a right to abandon them and to rescind the contract, it was a legal right. It was a right to avoid the lease, to be discharged from his obligation to pay rent and released from his covenants, and to recover from the defendant the damages caused by his breach of contract. It is like the case of a purchaser of goods, who, after accepting them, finds that they are not the goods he ordered, and who has for that reason a right to rescind the contract of sale. Coe v. Clay, 5 Bing. 440. Neale v. Mackenzie, 1 M. & W. 747. Holgate v. Kay, 1 Car. & K. 341. Blair...