Gaston v. Gordon

Decision Date03 March 1911
Citation208 Mass. 265,94 N.E. 307
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Gaston Snow & Saltonstall, for plaintiff.

G. L Mayberry, for defendant.



This is an action of contract to recover rent reserved in a written lease. The facts are not in controversy. The defendant hoping to secure a license to sell intoxicating liquors upon the demised premises, executed with the plaintiff under date of November 15, 1907, a lease for a term of three years from February 1, 1908, which contained a covenant that he would 'use the said premises solely for the following purposes: For the retail liquor business,' and would not 'use said premises or any part thereof for any purpose other than those stated in this lease, nor for any purpose * * * which shall be unlawful * * * or contrary to any law, ordinance or by-law.' In the latter part of 1907 an application for a license for the sale of intoxicating liquors on the premises was made by the defendant to the licensing board, and it was refused. Thereupon the defendant gave notice to the plaintiff, did not enter occupation under the lease, and refused to pay rent.

1. This action is chiefly defended on the ground that the lease on its face requires something to be done, which is illegal unless a license was granted, and that as this was refused the plaintiff cannot recover. If this objection is well founded the plaintiff cannot recover for it is elementary that a contract which cannot be performed without violating the law is void. The lease is explicit that the lessee will use the premises solely for the liquor business. This is equivalent to an express stipulation that he will use them for nothing else. This business when licensed according to the provisions of the statute is recognized by law as legal. It was possible in the nature of things lawfully to comply with all the stipulations of the lease. It is an implied condition of all contracts that they will be lawfully performed. Where it is possible to execute their terms in different ways, one of which is permissible and the other prohibited, it will be presumed as a general rule in the absence of evidence to the contrary that both parties intended that it should be executed according to law. A contract will be treated as binding when it can reasonably be performed in such way as to violate no law, and will not be regarded as void, because among others not objectionable one way is open for so executing it as to contravene some criminal statute. Shedlinsky v. Budweiser Brewing Co., 163 N.Y. 437, 57 N.E. 620; Waugh v. Morris, L. R. 8 Q. B. 202-208; Tyler v. Directors of Chichester & Midhurst Ry. Co., L. R. 4 H. L. 628; Newby v. Sharpe, 8 Ch. Div. 39. There is in this lease the further provision that there shall be no unlawful use of the premises. This confirms the implication to this effect which the policy of the law reads into every contract. There is therefore not only nothing to indicate that the parties in executing this lease contemplated any unlawful use, but the clear statement to the effect that they did not.

2. The defendant contends that it is an implied condition of the entire lease that the lessee shall be able to procure a license, and if he fails he shall not be bound. The lease is plain that the premises can be used for nothing else than the liquor business, except with the assent in writing of the lessor. It follows that without a license the lessee can make no use of them, except by consent of the lessor. Stewart v. Winters, 4 Sandf. Ch. (N. Y.) 587; Spaulding Hotel Co. v. Emerson, 69 Minn. 292, 72 N.W. 119; Maddox v. White, 4 Md. 72, 59 Am. Dec. 67; Wertheimer v. Circuit Judge, 83 Mich. 56-62, 47 N.W 47. There is nothing about the lease to raise the inference that the parties intended it to be subject to an implied condition that the defendant should procure a license. On the contrary, there is much to lead to the opposite conclusion. It is elaborate in all its details. It expresses the rights of the parties in the event of damage to or destruction of the property by fire or unavoidable casualty or its taking by eminent domain, and for the possible termination of the lease under these circumstances. There is also a stipulation as to its termination in the event of bankruptcy, insolvency or assignment for benefit of creditors by the lessee, and by notice in writing at any time after January 31, 1910. The lease seems to be a studied effort to put into written phrase every consideration which was a part of their agreement. It was apparently an intelligent attempt to express their contract in such a way and with such fullness that nothing could be left...

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