Dana v. Dana

• Decision Date: 01 July 1927
• Citation: 157 N.E. 623,260 Mass. 460
• Parties: DANA v. DANA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

260 Mass. 460

157 N.E. 623

DANA

v.DANA et al.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1927.

Case Reserved from Superior Court, suffolk County; Marcus Morton, Judge.

Suit in equity by Myer Dana against William J. Dana and another to enjoin defendants from further proceeding before arbitrators, and further asserting claim or right to renew a lease. On reservation. Order sustaining demurrer to bill affirmed, and decree entered dismissing bill.E. C. Jenney, of Boston, for plaintiff.

Lee M. Friedman, of Boston, for defendants.

BRALEY, J.

By an indenture dated July 17, 1916, Sarah P. Smith and Walter N. Smith leased to the defendant, William J. Dana, a store numbered 56 on Main street in the city of Taunton, and ‘so much of the cellar as is underneath said store,’ with the privilege of using ‘the open area of the rear, and the driveway from Tremont street as is necessary for the conduct of its business.’ The lessor also agreed to demolish ‘the present building’ and to erect a new building in accordance with plans furnished by Gustavus L. Smith, an architect. The erection of the new building was to ‘begin as soon as practicable to, and be ready for use, and fit for occupation, not later than October 15, 1916.’ The term of the demise was fixed at ten years from November 1, 1916, and the lease was duly recorded under G. L. c. 183, § 4. The rent was payable as follows, $1,500 per annum for the first four years, to be paid in advance at the rate of $125 a month, $1,800 yearly for the six years thereafter, which rent was to be paid in advance at the rate of $150 for each month, ‘with the option on the part of lessee to renew this lease for a further term of ten years from the expiration of the term herein set forth.’ ‘The rent for the option of the first five years if the parties to this indenture cannot agree, it is agreed by the parties hereto, that in the event of a disagreement as to the rental, the same should be left to three arbitrators, one to be chosen by the lessor, and the other to be chosen by the lessee, and the two so chosen shall choose a third person, and it is agreed that the decision of the arbitrators shall be final and binding on the parties hereto, and it is further agreed that the remaining five years of the option if the parties cannot agree as to the rental, the parties shall arbitrate as is herein contained, and the lessee does promise to pay the said rent in the manner aforesaid.’ ‘This lease shall bind the lessor and lessee, their respective heirs, executors, administrators, assigns and successors.’

[1] The covenant for renewal ran with the land, and is binding on the plaintiff, who at some time after July 17, 1916, acquired the title and when the present suit was begun, was the owner of the reversion. Leominster Gas Light Co. v. Hillery, 197 Mass. 267, 83 N. E. 870;Taylor v. Kennedy, 228 Mass. 390, 394, 395, 117 N. E. 901. It is stated in the bill that within the time named in the lease, the defendant, William J. Dana, notified the plaintiff of his intention to exercise the option of renewal, and, the parties being unable to agree on the amount at which the future rental should be fixed ‘for the period of five years from the expiration of the lease,’ each party chose an arbitrator while the two thus designated selected a third arbitrator. The board as constituted consisted of three members of the bar, each having a usual place of business in Boston where the plaintiff also resides.

[2] The agreement for arbitration was valid. Marsch v. Southern New England Railroad, 230 Mass. 483, 120 N. E. 120. The arbitrators seasonably heard the parties and their evidence, and the hearings, when the present suit was begun, had been completed with ‘the exception of final arguments by counsel upon the evidence as submitted.’

[3] The material allegations of fact in the bill, which are admitted by the demurrer (O'Brien v. O'Brien, 238 Mass. 403, 131 N. E. 177), set forth in substance that the defendants are owners or in control of many stores and buildings in close proximity to the demised premises, and a true statement by them of the ‘rentals received’ would be of great assistance to the arbitrators, and that a fair rental value can be determined only by a complete disclosure ‘of all facts, documents, books, and papers in the possession, or within the control’ of the parties with such evidence as ‘both may produre relative to the future rental value,’ which is to be ascertained largely from rents received from similar real property in the vicinity. But at the hearings the defendant William J. Dana produced ‘what purported to be existing leases of certain premises in the vicinity of said premises,’ and testified as to the rents and income received therefrom. The allegation is then made, that his evidence was ‘fictitious and false,’ and ‘not in accordance with the facts,’ and that it was offered for the purpose of deceiving, and was ‘intended to mislead, and confuse the arbitrators in their determination of the true rental value of the plaintiff's property.’ The thirteenth paragraph of the bill alleges, that Moses L. Dana is president of the Dana Furniture Company, located in Taunton, of which the defendant, William J. Dana, is the treasurer and clerk, and that Moses L. Dana is the president and William J. Dana is the treasurer and clerk of the Bristol County Realty Company, also doing business in Taunton, in which they control ‘a large majority of the stock.’ The defendant testified, that the Dana Furniture Company paid to the Bristol County Realty Company rent at the rate of $300 a month, which evidence was untrue and was introduced for the purpose of ‘fraudulently deceiving the arbitrators,’ and ‘to damage your plaintiff.’ The allegations in the fourteenth, fifteenth and sixteenth paragraphs are largely amplifications of the statements in the thirteenth paragraph. The thirteenth paragraph, however, further alleges that the defendants ‘conspired together’ for the purpose of concealing from the arbitrators the true amount of rent paid for the store by the Dana Furniture Company, and that Moses L. Dana, who was present, heard the testimony of William J. Dana, and, well knowing that it was untrue and that it was given with the intent of ‘fraudulently deceiving the arbitrators.’ The fourteenth, fifteenth and sixteenth paragraphs contain similar statements as to leases from the Bristol County Realty Company held by tenants whose names are given, with the amount of rent paid by each as testified to by William J. Dana. The seventeenth paragraph charges that William J. Dana, with the knowledge and consent of Moses L. Dana, caused the destruction of ‘ledger cards' and original books of entry of the Bristol County Realty Company, ‘showing the accounts of different tenants,’ for the purpose of preventing their production in evidence before the arbitrators on the principal issue or to contradict William J. Dana who testified ‘that he kept no books, or records of any kind pertaining to said business, and that all...