Corcoran v. S.S. Kresge Co.

Decision Date24 February 1943
Citation313 Mass. 299,47 N.E.2d 257
PartiesCORCORAN et al. v. S. S. KRESGE CO. S. S. KRESGE CO. v. CORCORAN et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Appeal from Superior Court, Suffolk County; Williams, Judge.

Before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

Action by Agnes G. Corcoran and others, trustees, against the S. S. Kresge Company, a corporation, and by the S. S. Kresge Company against Agnes G. Corcoran and others for breaches of a contract in failing to pay agreed sums. From judgments for the corporation, the trustees appeal.

Affirmed.

D. J. Triggs, of Boston, for Corcoran et al.

D. Burstein, of Boston, for S. S. Kresge Co.

COX, Justice.

The S. S. Kresge Company, the defendant in the first action and plaintiff in the second, hereinafter referred to as the corporation, is the lessee of a parcel of land in Brockton. The plaintiffs in the first action, who are defendants in the second, hereinafter referred to as the trustees, are the owners of land to the south of and adjoining the corporation's premises.

From the statement of agreed facts it appears that the northerly walls of the two buildings on the trustees' land are built on the common boundary line of the two parcels. The corporation, through a general contractor, commenced an excavation on its premises in connection with the construction of a building thereon, the southerly wall of which, when erected, would be built on the southerly line of the premises and would extend to a depth of ‘generally’ ten feet, and at one point twelve feet, below the grade of the street upon which both lots abut. The bottom of the foundation of the northerly walls of the trustees' buildings is, with respect to one of the buildings, about eight feet below this grade, and, with respect to the other building, about five feet. The excavation on the corporation's premises, adjacent to the earth on the trustees' land, that is necessary in order to erect the foundation for the southerly wall of the corporation's proposed building would endanger the trustees' buildings and the adjoining earth beneath them, unless the earth is excavated under the northerly walls of the trustees' buildings to depths varying from approximately two to seven feet and unless underpinning under said walls is installed which would extend downward to the level of the bottom of the foundation of the southerly wall of the corporation's building. This work is necessary to support the adjoining earth on the trustees' land underneath the northerly walls of their buildings because of its condition, that is, with the burden of their buildings upon it, but would not be necessary to support such earth if it were in its natural condition without such buildings upon it. It was necessary to commence this underpinning work without delay and before the parties could determine upon whom the law imposed the burden of having it done. Accordingly, the parties entered into an agreement, hereinafter referred to, and, subject thereto and in reliance thereon, the trustees entered into a contract with the corporation's contractor to do the work and to pay him $3,000. The proposed construction by the corporation is a reasonable use of its premises.

The agreement between the parties sets out that they are agreed on the proposition of law that the corporation is required to furnish such support as would be necessary to support the trustees' adjoining land in its natural condition, that is, in the condition in which it would be if there were no buildings upon it; that they disagree on the question of law whether under the provisions of c. 3, § 34, of the revised ordinance of 1926 of the city of Brockton, to the extent that that ordinance may be valid and effective, or by reason of any other valid ordinance or applicable rule of law, the corporation or the trustees are required to furnish such support as is necessary to support the trustees' adjoining land with the burden of their buildings upon it. If the corporation is required by law to furnish the support necessary to support the adjoining land with the buildings thereon, it agrees to pay the trustees $1,500 within ninety days from the date of the agreement, and to release them from all obligation to repay to it the sum of $1,500 advanced by it to them. If, however, the corporation is required by law to furnish such support only as would be necessary to support the trustees' adjoining land in its natural condition, the trustees are to repay the corporation, within ninety days from the date of the agreement, the sum of $1,500 that had been advanced to them. The agreement contemplates that if the dispute between the parties is not resolved on or before ninety days from its date, the corporation will bring an action against the trustees for an alleged breach of the agreement by them in failing to pay the corporation $1,500, and that the trustees will bring an action against the corporation for an alleged breach of the agreement for failure to pay said additional sum of $1,500. It is unnecessary to state other provisions of the agreement.

After ninety days had elapsed from the date of the parties' agreement, these actions of contract were brought, in each of which the plaintiff seeks to recover $1,500 for the alleged breach of the agreement. The cases were submitted to a judge of the Superior Court on a case stated. The corporation has not paid the trustees, nor has it released them from their obligation to repay it the sum advanced upon the execution of the agreement, nor have the trustees repaid the corporation the sum so advanced. The statement of agreed facts and the agreement between the parties, hereinbefore referred to, are made a part of the case stated. Sections of the ordinances of the city of Brockton are set out, and it appears that the city has accepted the ‘corresponding’ provisions of earlier laws ‘within the meaning of G.L. c. 143, § 3.’ The judge ordered judgment for the defendant in the trustees' action, and the trustees appealed. He found for the plaintiff in the corporation's action, assessed damages in the sum of $1,500, and ordered judgment, and the trustees appealed. G.L.(Ter.Ed.) c. 231, § 96.

General Laws (Ter.Ed.) c. 143, § 3, provides, as far as material, that every city, except Boston, may, by ordinances ‘consistent with law,’ regulate the inspection, materials, construction, alteration, repair, height, area, location and use of buildings and other structures within its limits. See Commonwealth v. Atlas, 244 Mass. 78, 82, 138 N.E. 243. The buildings and structures that are excepted from the provisions of this section are not involved in the cases at bar. Section 34 of the revised ordinances of 1926 of the city of Brockton, in full force and effect since July 20, 1926, provides as follows: ‘Any person causing any excavation to be made for a building, shall have the same properly guarded and protected. Wherever necessary, he shall at his own...

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4 cases
  • Opinion of Justices to Governor
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 24, 1972
    ...We have said: '(I)f the words in the statute are clear and explicit, there is no room for speculation.' Corcoran v. S. S. Kresge Co., 313 Mass. 299, 303, 47 N.E.2d 257, 259. 1 See Chouinard, petitioner, Mass., a 267 N.E.2d 497; Sutherland, Statutory Construction (3d ed. Horack) § It would b......
  • Cote-Whitacre v. Department of Public Health, No. 04-2656 (Mass.Super 9/29/2006)
    • United States
    • Massachusetts Superior Court
    • September 29, 2006
    ...grounds, 449 U.S. 894 (1980); accord Falmouth Ob-Gyn Assocs., Inc. v. Abisla, 417 Mass. 176, 179 (1994) (citing Corcoran v. S. S. Kresge Co., 313 Mass. 299, 303 (1943)). Massachusetts courts have long recognized the common law rule that "the validity of a marriage depends upon the question ......
  • New York Cent. R. Co. v. Marinucci Bros. & Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • May 5, 1958
    ...Bulle, 247 Mass. 325, 328, 142 N.E. 61; Gorton v. Schofield, 311 Mass. 352, 356, 41 N.E.2d 12, 139 A.L.R. 1262; Corcoran v. S. S. Kresge Co., 313 Mass. 299, 303, 47 N.E.2d 257; Langdoc v. Gevaert Co. of America, Inc., 315 Mass. 8, 11, 51 N.E.2d 780. See also 50 A.L.R. 486. Irrespective of t......
  • Corcoran v. S. S. Kresge Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • February 24, 1943

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