Callahan v. Goldman

• Decision Date: 13 December 1913
• Citation: 216 Mass. 234,103 N.E. 687
• Parties: CALLAHAN v. GOLDMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 234

103 N.E. 687

CALLAHAN v. GOLDMAN.

Supreme Judicial Court of Massachusetts, Essex.

December 13, 1913

COUNSEL

Starr Parsons and H. Ashley Bowen, both of Lynn, for plaintiff.

Chas Neal Barney, Henry T. Lummus, and Chas. J. Goldman, all of Lynn, for defendant.

OPINION

LORING J.

The plaintiff in this action was lessee of the basement in Southwick Block in the city of Lynn, under a lease from the then owner for three years, dated June 1, 1907. The defendant succeeded to the reversion by force of a deed dated July 8 1907. Under an earlier lease the plaintiff had installed in the basement four bowling alleys (which were his property) and the 1907 lease provided 'that there shall be no forfeiture or breach of this lease for less than three months' arrears of rent and only on 30 days' notice in writing to the lessee and mortgage[e] declaring a forfeiture and that any time before the expiration of said 30 days before a forfeiture or breach shall occur upon paying up the arrears the lessee or a purchaser from him or the mortgagee or his assigns may remove the bowling alleys in said basement, making such opening in the building as may be necessary, but replacing such opening in as good a condition as it was before the removal.' On June 3, 1908, the plaintiff's rent for 3 months (amounting to $58.98) being unpaid, the defendant gave the plaintiff notice of a forfeiture of the lease, stating in it the provisions of the above 30 days' notice contained in the lease. According to the plaintiff's evidence the plaintiff thereupon called upon the defendant, and at this interview the defendant told him that he was going to remodel and make improvements in the basement which would involve giving up one of the alleys; that the other three would not be removed and would be protected while the work was going on, and 'that the rent question was to remain and to taken care of when a new lease was drawn up'; further, the defendant told him that he wished him to remain his tenant and that 'he, the defendant, would put the basement in good shape for bowling alleys and would have it ready for the plaintiff to occupy in the early fall, and the defendant said that in case the fourth alley could not be replaced after repairs had been made, a reduction should be made in the rent, and that the terms of the new lease were then and there agreed upon.' The plaintiff also testified that the defendant asked him, the plaintiff, for the key so that his architect and workmen could go forward with the improvements. The plaintiff asked the defendant to put this in writing; to this the defendant demurred, but agreed to have his attorney do so; whereupon the plaintiff (so he testified) said that he agreed to it and when he, the defendant, 'made out * * * [his] paper satisfactory,' he would let him have the key; that on this understanding he gave the key to his (the plaintiff's) attorneys, who later gave it to the defendant on receiving a lease duly executed and signed by the defendant, dated June 19, 1908, for a term of three years beginning on the 1st day of the following September. Meanwhile the defendant had gone abroad, returning on August 26, 1908. The plaintiff further testified that on reading the lease executed by the defendant and delivered to his attorneys he found that 'in that part which had to do with the number of bowling alleys [the lease] did not comply with the terms of the oral understanding between the plaintiff and the defendant,' and he, the plaintiff, 'declined to accept or sign the same. The matter was then left in abeyance pending the defendant's return from Europe'; that during his absence in Europe all four alleys were torn up and the defendant's servants were injured by being covered with débris and by receiving ...