Donovan Motor Car Co. v. Niles
| Decision Date | 22 June 1923 |
| Citation | 140 N.E. 304,246 Mass. 106 |
| Parties | DONOVAN MOTOR CAR CO. v. NILES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; John D. McLaughlin, Judge.
Action by the Donovan Motor Car Company against Louville V. Niles. From a decree dismissing the bill, plaintiff appeals. Affirmed.
W. A. Kneeland and James T. Pugh, both of Boston, for appellant.
S. T. Lakson, of Boston, for appellee.
The defendant by assignment has succeeded not only to the rights of the lessors but is bound by their covenants. Peters v. Stone, 193 Mass. 179, 79 N. E. 336. The term of the lease was for five years from the 1st day of August, 1917, and the plaintiff entered into and has remained in possession of the premises until the bill was filed May 26, 1922. But the habendum clause, after stating the terms, reads,
‘Together with the option of renewal on the part of state lessee for an additional term of five * * * years commencing August 1, 1922, provided written notice of its intention to exercise said option is given by said lessee to said lessors at least three * * * months prior to said 1st day of August, 1922.’
It was not contemplated that a new lease should be made but at the election of the lessee the term should be extended for five years more, and by the express wording of the lease it was a condition precedent that the plaintiff should give three months' notice before August 1, 1922, and that the notice must be in writing. Stone v. St. Louis Stamping Co., 155 Mass. 267, 276,29 N. E. 623.
It was admitted that no notice in writing was given until May 19, 1922. The plaintiff, however, contends that such notice was waived by the defendant's acceptance of an oral notice of the plaintiff's election to renew. A lessor undoubtedly may waive an express provision for notice which is for his benefit. Wood v. Edison Electric Illuminating Co., 184 Mass. 523, 69 N. E. 364. But the judge has found that there was no waiver, and while the evidence is reported, the finding which was a question of fact does not appear to have been plainly wrong. It accordingly must stand.
The remaining contention is that, time not being of the essence of the contract, the written notice was sufficient. The short answer is that, whether the question arises either at law or in equity, it is settled that ‘time is of the essence of an option.’ Carter v. Phillips, 144 Mass. 100, 10 N. E. 500;Boston & Worcester Street Railway v. Rose, 194...
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Pack 2000, Inc. v. Cushman
...to deal with flaws in the exercise of an option, e.g., failure to give notice of the exercise of an option on time, Donovan Motor Car Co. v. Niles, 246 Mass. 106, 107 (1923); failure to offer the purchase price on exercise of an option, Hunt v. Bassett, 269 Mass. 298, 302–303 (1929); [or] f......
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Kurland v. Massachusetts Amusement Corp.
...New Haven & Hartford Railroad, 243 Mass. 457, 137 N.E. 590;Chatalian v. Di Fusco, 244 Mass. 513, 139 N.E. 174;Donovan Motor Car Co. v. Niles, 246 Mass. 106, 140 N.E. 304, and the failure to make any payment when due not only constituted a breach but excused the lessors from performance of t......
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Pack 2000, Inc. v. Cushman
...to deal with flaws in the exercise of an option, e.g., failure to give notice of the exercise of an option on time, Donovan Motor Car Co. v. Niles, 246 Mass. 106, 107 (1923); failure to offer the purchase price on exercise of an option, Hunt v. Bassett, 269 Mass. 298, 302-303 (1929); [or] f......
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In re Ionosphere Clubs, Inc.
...date, there must be no delay, because time is of the essence of the option, both at law and in equity. Donovan Motor Car Co. v. Niles, 246 Mass. 106, 140 N.E. 304 (1923). Accord, Bickford v. Dillon, 321 Mass. 82, 71 N.E.2d 611 (1947). Eastern has not provided any authority for this Court to......