Dow Associates, Inc. v. Gulf Oil Corp.

• Decision Date: 28 June 1974
• Docket Number: No. 6583,6583
• Citation: 321 A.2d 579,114 N.H. 381
• Parties: DOW ASSOCIATES, INC. v. GULF OIL CORPORATION.
• Court: New Hampshire Supreme Court

Page 579

321 A.2d 579

114 N.H. 381

DOW ASSOCIATES, INC. v. GULF OIL CORPORATION.

No. 6583.

Supreme Court of New Hampshire.

June 28, 1974.

Westcott, Millham & Dyer, Laconia (Peter V. Millham, Laconia, orally), for plaintiff.

Normandin, Cheney & O'Neil and David O. Huot, Laconia, for defendant.

LAMPRON, Justice.

Petition under RSA 540:12-540:15 for a writ of possession of premises located in Meredith owned by the plaintiff and under lease to the defendant as a gasoline filling station. A judgment for the plaintiff rendered by the District Court of Laconia was appealed to the superior court. RSA 540:20 (Supp.1973). At a hearing before Cann, J., defendant moved for a nonsuit at the close of plaintiff's evidence. The court took the motion under advisement and defendant rested. The court denied plaintiff's requests for a finding and ruling that the defendant was obligated to pay the sewer rental charge made by the town for the premises and rendered a verdict for the defendant. Plaintiff's exceptions to the denial of these and other requests were reserved and transferred. The main issue on this appeal is which party is obligated to pay this sewer rental charge.

On March 21, 1956, plaintiff's predecessor in title and the defendant entered into a 15-year lease to these premises with options for two additional 5-year terms. Plaintiff acquired the property in 1966 at a foreclosure sale.

As assessed by the town the sewers rental in question consists of a minimal fixed charge plus an excess charge based upon and measured by the amount of water used on the premises. RSA 252:10 (Supp.1973). These charges are committed for collection to the collector of taxes and create a lien on the real estate. RSA 252:12, 252:13. From the beginning of the lease the lessee has paid the cost of utilities, including water. Beginning at least in 1962, plaintiff's predecessor in title and the plaintiff were charged for the sewer rental which the plaintiff paid.

Plaintiff's resident testified that the payments for sewer rental were made in the regular course of business until the matter was brought to his attention by the bookkeeper in 1970. Plaintiff then presented defendant a bill in the amount of $365.30 for sewer assessments since 1962. Included in this amount was $268.44 for excess charges measured by the amount of water used in the operation of the gasoline station by the defendant.

Defendant refused to make payment invoking paragraph 7 of the lease which reads in pertinent part: 'The Lessor agrees to pay all taxes upon the land, buildings and improvements . . . The Lessee shall pay the taxes on its property and its equipment on the leased premises . . . (s)hould the real estate taxes assessed against the demised premises amount to more than $500. per annum, while said Lease is in effect, the Lessee will, within 30 days after receipt of duly receipted tax bills from Lessor, reimburse Lessor in an amount equal to taxes to paid by Lessor in excess of $500.00 per annum.'

Plaintiff thereupon served a notice to quit followed by the petition for a writ of possession based on defendant's violation of paragraph le of the lease. This clause authorizes the lessor to terminate the lease for failure to pay rent due 'or to comply with any other terms of this lease' after a written notice of thirty days, during which the lessee by complying with the lease can avoid termination.

The trial court properly found that the lease...