Carnes v. Hersey

• Decision Date: 11 March 1875
• Citation: 117 Mass. 269
• Parties: George W. Carnes v. Alfred C. Hersey
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 269

George W. Carnes v. Alfred C. Hersey

Supreme Court of Massachusetts

March 11, 1875

[Syllabus Material]

Suffolk. Contract for a breach of the covenant for quiet enjoyment in a lease, with a count for money had and received. Trial in this court, without a jury, before Morton J., who allowed a bill of exceptions in substance as follows:

On March 15, 1866, the defendant leased to the plaintiff, by a written instrument under seal and duly recorded, an estate on Summer Street, Boston, for the term of ten years from July 1 1866, at a certain rent payable quarterly, "and at that rate for any fraction of a quarter not completed at the legal termination of said term, and for such further time" as the lessee should hold. Then follows this clause: "The first payment thereof to be made on the first day of October next, provided, however, that in case said lessee shall not receive possession of the whole of the demised premises on the said first day of July, said lessee shall make a just proportionate deduction from the first quarter's rent and taxes."

The lessee also covenanted to pay the rent reserved "except only in case of fire or other casualty, as hereinafter mentioned," and "also all taxes and assessments whatsoever, whether in the nature of taxes now in being or not, payable for or in respect of said premises, or any part thereof, during said term or during such further time as the said lessee shall hold the same or any part thereof." Then, after other immaterial clauses, follows this provision: "But said lessee shall pay only five sixths of the taxes to be assessed in May next, and such pro rata proportion of the taxes assessed in or after the month of May, a. d. 1876, as shall correspond to the portion of time after the first day of said month of May for and during which he shall occupy said premises, or they shall be occupied by any person claiming under him."

Near the end of the lease were these clauses:

"And provided also, that in case the said premises, or any part thereof, shall during said term be destroyed or damaged by fire or other unavoidable casualty, so that the same shall be thereby rendered unfit for use and habitation, then and in such case the rent hereinbefore reserved, or a just and proportional part thereof, according to the nature and extent of the injury sustained, shall be suspended or abated until the said premises shall have been put in proper condition for use and habitation by the said lessor, or these presents shall be thereby determined, at the election of the said lessor or his heirs, representatives or assigns.

"And the said lessor covenants and agrees with the said lessee and his representatives, that he and they, paying the rent aforesaid and performing the covenants herein contained on his and their part to be paid and performed, shall peaceably hold and enjoy the said demised premises without hindrance or interruption by the said lessor or any other person or persons whomsoever."

The store on the demised premises was totally destroyed in the great fire of November 9, 1872. The defendant, the lessor, subsequently rebuilt the store, and on its completion, about August 7, 1873, refused, upon the plaintiff's demand, to permit the plaintiff to occupy the same, but let the premises to other tenants without the plaintiff's consent.

The defendant in his answer alleged that in pursuance of the provisions of the lease, to the effect that in case of such a destruction of the store by fire, the lease should be thereby determined at the defendant's election, the defendant elected that the lease should be thereby determined, and notified the plaintiff of such election, and that the plaintiff acquiesced therein; but the defendant contended that by the proper construction of the lease, the plaintiff must show an election by the defendant that it should continue.

The judge found the following facts:

"1. Hersey never elected to continue the lease, and did not do anything to lead Carnes to believe that he had elected to continue it. 2. No formal written notice by Hersey of his election to determine the lease was given to Carnes until April 25, 1873. 3. Both parties understood soon after the fire that the lease was terminated, and that any future occupancy of the premises must be under a new lease, to be agreed upon between the parties. 4. Hersey therefore elected to terminate the lease immediately after the fire, and Carnes so understood it. 5. Under the circumstances of this case, if a written notice was necessary, the notice of April 25, 1873, was within a reasonable time."

There was also evidence tending to show that on November 8, 1872 before the fire, the plaintiff voluntarily paid to the city treasurer of...