Fienberg v. Adelman

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: CARROLL
• Citation: Fienberg v. Adelman, 260 Mass. 143, 156 N.E. 896 (Mass. 1927)
• Decision Date: 24 May 1927
• Parties: FIENBERG v. ADELMAN.

260 Mass. 143

156 N.E. 896

FIENBERG

v.ADELMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1927.

Appeal from Probate Court, Suffolk County; Arthur W. Dolan, Judge.

Petition by David Fienberg against Rose Adelman, administratrix, to enforce specific performance of an option to renew a store lease. From a decree dismissing the petition, plaintiff appeals. Affirmed.

E. Greenhood, of Boston, for appellant.

Philip A. Hendrick, of Boston, for appellee.

CARROLL, J.

The plaintiff and the defendant's intestate were lessee and lessor respectively of a store at No. 1045 Washington street, Boston, for a term of five years from July 1, 1921. On March 15, 1923, the lessor promised in writing ‘to give to Mr. D. Fienberg on option on store at 1045 Washington street, when the present lease expires at the same rental ($2,400) a year for five years after the old lease expires.’ The petition by the lessee is to enforce specific performance of the option. According to the plaintiff's testimony, in March, 1923, the lessor desired to put in steam and water pipes extending from the basement through the plaintiff's store to the floor above; that the plaintiff objected to this; that it was agreed the lessor would give the extension if the plaintiff would withdraw his objection, which he did.

The defendant contended that there was no consideration for the option for the extension of the lease. The plaintiff relies on the principle that, if a party who agrees to do certain work refuses to perform, and the other party to secure the fulfillment of the contract, instead of relying on the right to collect damages, agrees to pay an additional sum for the completion of the contract, the new promise is founded on a consideration. Peck v. Requa, 13 Gray, 407;Abbott v. Doane, 163 Mass. 433, 434, 40 N. E. 197,34 L. R. A. 33, 47 Am. St. Rep. 465. This rule, as pointed out in Parrot v. Mexican Central Railway, 207 Mass. 184, 195, 93 N. E. 590,34 L. R. A. (N. S.) 261, rests upon the doctrine that under these circumstances there is a new consideration for the promise. It is recognized, however, that this principle should not be extended.

The lease gave the lessor a right to enter the leased premises and to ‘make repairs and alterations if he should elect so to do.’ The lessee testified that he did not know that the lessor had this right, that no mention was made of it by the lessor. The judge found there was no evidence that the new agreement was in settlement of any dispute as to whether the proposed alterations were...