Boston Box Co. v. Rosen
| Decision Date | 07 January 1926 |
| Citation | 150 N.E. 177,254 Mass. 331 |
| Parties | BOSTON BOX CO., Inc., v. ROSEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; J. H. Sisk, Judge.
Action of contract by the Boston Box Company, Inc., against Harry Rosen to recover on defendant's guaranty of performance by lessee of lease on plaintiff's premises. Finding for plaintiff, and defendant excepts, and case submitted on agreed statement of facts. Exceptions overruled.
M. Palais, of Boston, for plaintiff.
A. Mehlinger, of Boston, for defendant.
This case is before us on an agreed statement of facts from which it appears that the plaintiff, by indenture dated December 29, 1920, leased to the Phonograph Outlet Co., Inc., ‘the basement and street floor (excepting the boiler room in said basement), in the building known and numbered * * * (33) Hawkins street, in said Boston’ for the term of one year from January 1, 1921. The lease provided that:
‘The party of the first part reserves the right to occupy a reasonable part of the basement up to April 1st, 1921, without any deduction from the rent herein reserved, with free access to and from said basement during said period.’
The rent reserved was at the rate of $1,800 a year payable, in advance, in equal monthly installments of $150. The defendant in writing guaranteed performance by the lessee. The lessee occupied the demised premises until some time in May, 1921, when it vacated and surrendered them, but such surrender was not accepted by the lessor. Before April 1, 1921, but after the execution of the lease and guaranty, and after the lessee's entry under the lease, the lessor and lessee entered into and an oral agreement under which, beginning April 1, 1921, the lessor was to continue to occupy the space in the basement which it had theretofore occupied, agreeing to pay the lessee therefor $35 a month. The defendant had no knowledge of this agreement and did not ratify it nor consent to the lessor's occupation of the space on or after April 1, 1921. The defendant contends that by reason of the oral agreement there was a material change and alteration of the written lease and that he is released from liability on the guaranty. The case was tried before a judge of the Superior Court sitting without a jury, who found for the plaintiff in the sum of $805 with interest thereon from January 1, 1922.
[1] By the oral agreement the lessor became a tenant at will of the lessee of a portion of the leased premises terminable by written notice under G. L. c. 186, § 12. If there has been a material alteration of the lease without the consent of the defendant so as to make it another and different instrument, and he has been prejudiced thereby, by, the identity of the contract has been destroyed and the defendant is no longer liable. The effect of the oral contract was to make the lessor of the lease a subtenant of a portion of the basement; it was an independent collateral agreement which did not relieve the original lessee from the payment of $150 a month as rent; but as the oral agreement entitled the lessee to receive $35 a month as rent thereunder, the net amount to be paid under the lease was reduced to $115 a month.
The agreed facts show that the lessee paid to the...
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Finegan v. Prudential Ins. Co. of America
...32, 34;Cummington Realty Associates v. Whitten, 239 Mass. 313, 324, 325, 132 N.E. 53, 17 A.L.R. 527. See, also, Boston Box Co., Inc., v. Rosen, 254 Mass. 331, 334, 150 N.E. 177. Third. In view of the conclusion reached it is unnecessary to consider whether the claimant has established a rig......
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