D.A. Schulte, Inc. v. American Realty Corp.

• Decision Date: 01 June 1926
• Citation: 152 N.E. 233,256 Mass. 258
• Parties: D. A. SCHULTE, Inc., v. AMERICAN REALTY CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

256 Mass. 258

152 N.E. 233

D. A. SCHULTE, Inc.,

v.AMERICAN REALTY CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

June 1, 1926.

Report from Superior Court, Suffolk County; Morton, Judge.

Suit by D. A. Schulte, Inc., against the American Realty Corporation. On report, after finding of facts by superior court. Decree for plaintiff.

O. Storer and J. J. Lucas, both of Boston, for plaintiff.

M. E. Bernkopf and A. H. Grauman, of Boston, for defendant.

BRALEY, J.

The two leases, covering the premises hereinafter described under which the plaintiff was in possession for a term ending September 29, 1927, each contains the following covenant:

‘This lease is made on condition that in case the whole or any part of the demised premises or of said building be destroyed or damaged by fire or other unavoidable casualty, so as to render the same unfit for use and occupation, or be taken, damaged or destroyed by public authority or be damaged or injured directly or consequentially by reason of anything lawfully done in pursuance of any public authority whereby either the lessor or the lessee may be entitled to compensation after the execution and before the termination thereof, then this lease may, at the election of the lessor within a reasonable time, be terminated.’

A fire which occurred in the early morning of February 15, 1925, apparently started in the jewelry store between the ceiling of the basement space and the flooring of the street floor store.

The ‘plaintiff occupied on the street floor the corner store * * * with a frontage of approximately 14 feet on Washington street and approximately 25 feet on School street. The plaintiff also had possession of basement space underneath the rear portion of said street floor, said basement space fronting on School street, to the extent of approximately 9 feet and being approximately 13 feet in length. Next to the plaintiff's store on Washington street and a part of said building was a jewelry store approximately 16 feet along Washington street and running back from Washington street to a depth of approximately 20 feet. The jewelry store occupied basement space running under both the plaintiff's street floor store and the jewelry store street floor, which basement space had a frontage of approximately 22 feet along Washington street and had a depth running back from Washington street of 13 feet 6 inches under the plaintiff's street floor store, and of approximately 20 feet under the jewelry store street floor. In the left-hand rear portion of the basement space occupied by the jewelry store is a partition inclosing an elevator shaft and the elevator machinery, which elevator serves the floors of said building avove the stores. The basement of the jewelry store was apparently occupied for storage purposes and was reached by a trapdoor and a steep ladderlike contrivance running down into the basement from the jewelry store. There was no other entrance to this basement. * * *

‘The fire * * * followed a course along said beams or joists avove the ceiling of the jewelry store basement space running approximately from School street across nearly the entire length of the jewelry store basement and beyond the partition into the space occupied by the elevator shaft and machinery. * * * Firemen in responding to the alarm for the fire jimmied open the doors. * * * As a result of the fire and the acts of the firemen, the ceiling, consisting of composition board and plaster, of the basement space occupied by the jewelry store was burnt and torn down nearly its entire length of 22 feet and to a depth of 5 to 8 feet at its widest point. This left exposed to view to that extent the street store floors of the plaintiff's store and of the jewelry store, and also three joists or beams supporting the street store floors. The three beams which were exposed were...