Ginsburg v. Jacobson

• Decision Date: 24 June 1931
• Citation: 276 Mass. 108,176 N.E. 918
• Parties: GINSBURG et al. v. JACOBSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

276 Mass. 108

176 N.E. 918

GINSBURG et al.

v.JACOBSON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 24, 1931.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by Samuel L. Ginsburg and others against Max Jacobson. Verdict for defendant, and plaintiffs bring exceptions.

Exceptions sustained.

A. A. Ginzberg, of Boston, for plaintiffs.

G. I. Cohen, of Boston, for defendant.

CARROLL, J.

In this action of contract the plaintiffs seek to recover for the defendant's failure to perform the covenants of a lease. The plaintiffs leased to the defendant the entire premises ‘Consisting of a four-story and basement brick and frame dwelling,’ ‘numbered 123-125 Merrimac Street, running through to Lancaster Street, in Boston.’ The defendant paid the rent until the term expired on October 31, 1927. The lessee Jacobson by covenant A agreed to do the inside repairs and remove snow and ice ‘from the demised premises and its approaches and from the sidewalks bordering thereon.’ By covenant B the lessee was to keep the inside of the premises in such repair or condition as the same are in at the commencement of said same are in at the commencement of said term, or may be put in during the continuance thereof, damage by fire and unavoidable the lessee to restore broken glass unless broken by fire, and to defray the expenses of emptying and cleaning drains. Then follows covenant D, the meaning of which is in dispute. It is in these words: ‘And at the expiration of the said term [the lessee] will peaceably yield up to the lessors the said premises, and all erections and additions made to or upon the same, in good repair, order, and condition in all respects, damage by fire or other unavoidable casualty excepted; and during said term and for such further time as aforesaid, the said premises shall not be overloaded, damaged, or defaced.’ The lease contained no agreement requiring the lessors to make repairs.

The plaintiffs contended that at the end of the term the outside wall of the leased premises was not in good repair, order and condition; that the premises were not delivered to the rlaintiffs in such good repair and condition as required by the lease, that this wall was in danger of falling and was in an unsafe condition. The defendant's contention is that covenant D is to be construed in connection with the other covenants of the lease; that he covenanted merely to do certain inside repairs, and that covenant D did not require him to surrender the premises with the outside wall in good condition.

The plaintiffs offered evidence tending to show that at the end of the term the exterior wall of the building was in a defective condition, that the front wall ‘was in a damaged and unsafe condition.’ This evidence was excluded. The plaintiffs asked the judge to instruct the jury that defendant, under the covenant, was bound at the expiration of the lease to deliver ‘the outside of the premises in good repair, order and condition in all respects, irrespective of the condition of the same at the commencement of the term’; ‘that the lessee did undertake, by the terms of the lease, to leave the outside of the building in good repair.’ These requests were denied. The judge charged the jury in substance that the lessee was not bound to make outside repairs, that covenant D did not apply to the outside of the building and applied only to the condition of the interior of the premises. The case is here on the plaintiffs' exceptions.

The defendant covenanted to make all inside repairs, and by covenant B agreed to keep the inside of the premises in the same condition as they were in at the beginning of the lease or may be...