Curtis v. Pierce

• Decision Date: 18 June 1874
• Citation: 115 Mass. 186
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles P. Curtis & another v. Samuel S. Pierce

115 Mass. 186

Charles P. Curtis & another v. Samuel S. Pierce

Supreme Court of Massachusetts

June 18, 1874

Suffolk. Contract by the owners of the building on the corner of Tremont and Court Streets in Boston, against the lessee to recover the amount assessed thereon by the city of Boston November 20, 1871, pursuant to the St. of 1866, c. 174, under an order passed by the Board of Aldermen November 4, 1870, to widen Tremont Row and Court Street, and paid by the plaintiffs on April 29, 1872, after notice to the defendant. The writ was dated May 3, 1872.

In the Superior Court the case was submitted on the following agreed facts; judgment was ordered for the defendant, and the plaintiffs appealed:

"The lease of the premises was dated August 16, 1861, and embraced a term of ten years from January 1, 1862. The lessee occupied during the whole of the term, and said widening and assessments were made during said term. The lease contained the following covenant, viz.: 'And the said lessee for himself, his executors and administrators, doth hereby covenant to and with the said lessors, their heirs and assigns, that he will pay the said rent quarter-yearly in equal sums of twelve hundred and fifty dollars, the first of which payments shall be on the first day of April, 1862; that he will, from time to time, upon the request of the lessors pay them such sum or sums of money as shall be equal to the amount of the rates, taxes and duties of every kind that shall be levied or assessed on the demised premises, or on the lessors of the same; as well those assessed or levied by the authority of the United States as those assessed or levied by the authority of the State of Massachusetts, or of the city of Boston, for each year and part of a year, during the term aforesaid.' The widening of the street was actually begun early in the spring of 1871, and completed before the first of August, 1871.

"The court shall be authorized if they find for the plaintiffs to render judgment for them in the sum of $ 1520, with interest from April 29, 1872, and costs. Otherwise judgment for the defendant with costs."

Judgment for the plaintiffs.

J. P Healy & R. Lund, for the defendant, were first called upon. In the case at bar the covenant does not use the word "assessment," but uses the words "rates, taxes and duties of every kind;" and then proceeds to point out specifically what is meant, and limits the liability to those assessed or levied by the United States, the State of Massachusetts, or the city of Boston, for each year and part of a year. This shows clearly that the parties only intended the annual assessments, and, at farthest, such as could be apportioned according to the time of the occupancy. It cannot mean such an assessment...