Baker v. Horan

• Citation: 227 Mass. 415
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 25 June 1917
• Parties: EDWARD F. BAKER v. WILLIAM J. HORAN & another.

227 Mass. 415

EDWARD F. BAKER v. WILLIAM J. HORAN & another.

Supreme Judicial Court of Massachusetts, Suffolk.

June 25, 1917

March 26 1917.

Present: RUGG, C J., BRALEY, DE COURCY, CROSBY, & PIERCE, JJ.

Landlord and Tenant, Covenants. Evidence, Materiality. Where, in a lease of a building for a term of five years, beginning June 1,

1910, the lessee covenanted that he would "during the said term . . . pay all taxes beginning with the taxes of 1910 . . . which may be payable either by landlord or tenant," he must pay taxes assessed on

April 1, 1915, the clause "beginning with the taxes of 1910," while it showed an intention to include the taxes for 1910, not showing an intention to exclude the taxes for 1915, which were assessed during the term of the lease. In the same lease the lessee acknowledged "that the said premises including . . . machinery, elevator, electric motor . . . are now in first class condition," and covenanted "to keep all and singular the premises in such repair, order and condition as the same are in at the commencement of said term, and make all repairs, replacements and improvements of whatever nature," including repairs to the elevator electric motor and any other machinery, and that no use should be made of the premises

"which shall be unlawful, improper, noisy, or offensive, or contrary to any law of the Commonwealth, or ordinance . . . for the time being in force of the city." Nine days before the end of the term of the lease the building commissioner of the city acting under St. 1913, c. 806,

Section 4, served upon the lessor a notice calling attention to the fact that an inspection of the premises showed a violation of the building laws in certain specified particulars relating to the elevator, and notifying the owner "to correct the violation and abate the nuisance at once." The lessor showed the notice to the lessee. Some of the things required to be done by the commissioner, which would not have been necessary except for the requirements of the commissioner the lessee refused to do, and the lessor did them and sought in an action of contract to compel the lessee to pay therefor. Held, that the lessor was entitled to recover, since under St. 1907, c. 550, Section 132, as amended by St. 1913, c.

586, Section 2, non-compliance with the commissioner's requirements was maintaining a nuisance, which the lessee had covenanted that he would not do.

At the trial of the above action, on the question whether the lessee should be required to pay the tax assessed for 1915, evidence offered by the lessee tending to show that properties are assessed in Boston as of

April 1, 1915, that assessors' valuation lists are not completed until sometime in June or July and the rate is not figured nor the tax bills made up until about October 1, and that not until then is there an opportunity to pay "or as a matter of custom has it ever happened that any taxes are paid," was held to be inadmissible.

CONTRACT, upon certain covenants in a lease by the plaintiff to the defendants of a building on Canal Street in Boston. Writ dated October 4, 1915.

The action was referred to an auditor under a rule which provided that his findings of fact should be final.

The material provisions of the lease were as follows: "The Lessees during the continuance of this lease, at their own expense are to keep all and singular the premises in such repair, order and condition as the same are in at the commencement of said term, and make all repairs, replacements and improvements of whatever nature, inside and outside of the building, or on the demised premises, the elevator, boiler, steam, water or gas piping, electric motor, or any other machinery or fixtures in said building, damage by fire or other unavoidable casualty excepted but this exception shall not limit the liability of the lessees as to damage caused by water coming in to the cellar or drain pipes or plumbing as aforesaid. . . ."

"The Lessees hereby acknowledge that the said premises including steam, water or gas piping, machinery, elevator, electric motor, boiler and fixtures are now in first class condition. . . .

"And the Lessees do hereby, both individually and severally covenant with the Lessor that the Lessees during the said term and for such further time as they or any other person or persons claiming under them shall hold the said premises or any part thereof, will pay unto the Lessor the said rent at the times, and in the manner aforesaid (except as hereinafter provided), and will keep all and singular the said premises including machinery, elevator, motor, boiler and fixtures in such repair, order and condition as the same are in at the commencement of said term, or may be put in during the continuance thereof reasonable use and wearing thereof and damage by fire or other unavoidable casualty only excepted and further agree that they will pay all taxes beginning with the taxes of 1910 and assessments of every description which may be payable either by landlord or tenant, promptly when due, whether assessed by the City of Boston or the Commonwealth of Massachusetts, and to pay taxes if any assessed on the interest of the mortgagee in said premises, the taxes to be paid by the lessees hereunder, but not including assessments, to be assessed on a valuation not exceeding the total assessed value of the property, and will pay all charges for water; . . . and will peaceably yield up to the Lessor the said premises, and all erections and additions made to or upon the same, in good repair, order and condition in all respects, reasonable use and wearing thereof and damage by fire or other unavoidable casualty excepted; . . . and no trade or occupation shall be carried on upon the said premises, or use made thereof which shall be unlawful, improper, noisy, or offensive, or contrary to any law of the Commonwealth or ordinance or by-law for the time being in force, of the city or town in which the premises are situated, or injuries to any person or property;

Among other findings of the auditor were the following: "The elevator in the building in question originally was used as a combination passenger and freight elevator, but since the occupancy of the defendants under the lease of June 1, 1910, they used it for freight purposes only. . . .

"I find that at the time the notice was received from the building commissioner, the elevator was deficient in the particulars specified in such notice; and that the prices paid by the plaintiff, who had had a long experience in the care of numerous properties and the charge of repairs connected therewith, for the work and materials comprised in the various items of such list were fair and reasonable. . . .

"Item 5 is for `grill work top of elevator, winding armature and other work on elevator, $110.00.' The elevator originally had an overhead platform or covering of grille-work on the top which had become broken and was partially removed during the tenancy of the defendants. The work charged for in this item was for replacing such covering, for re-winding the armature in order to reduce the speed of the elevator, which was excessive, for renewing the shoes, which are made of iron and are the guides at the bottom of the elevator which hold it in place while travelling up and down, and for general work in repairing and placing the elevator in condition to conform to the requirements of the elevator regulations previously mentioned. The defendants had a contract with the firm which did the work for the plaintiff, by which the firm inspected the elevator weekly and made the ordinary adjustments and necessary repairs in the proper maintenance of the elevator, and, after the receipt of the notice...