Grennan v. Murray-Miller Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: BRALEY
• Citation: Grennan v. Murray-Miller Co., 244 Mass. 336, 138 N.E. 591 (Mass. 1923)
• Decision Date: 03 March 1923
• Parties: GRENNAN v. MURRAY-MILLER CO. et al.

244 Mass. 336

138 N.E. 591

GRENNAN

v.MURRAY-MILLER CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1923.

Appeal from Superior Court, Suffolk County; James H. Sisk, Judge.

Suit by Mary T. Grennan against the Murray-Miller Company and others for reformation of a lease, in which the defendant named filed a cross-bill to compel plaintiff to make certain repairs and alterations, as provided in the lease. From adverse decrees, plaintiff and the defendant Ira W. Shapira appeal. Decree dismissing original bill affirmed, and decree on the cross-bill reversed.

The defendant Shapira guaranteed performance of the terms and conditions of the lease on the part of the lessor and was said by the master to be the virtual plaintiff; Grennan being merely the nominal holder of the title for Shapira. The other unnamed defendants were the lessee's guarantors. The master found against plaintiff on her claim of mistake or fraud, pleaded as justifying a reformation, and found that it would cost the Murray-Miller Company $750 to make the alterations, which plaintiff had failed to, make, and that the defense of waiver of the landlord's obligation to make them had not been sustained. On March 11 the court entered a decree dismissing the bill and taxing the costs, and on the same date entered another decree adjudging and decreeing that the bill of complaint be dismissed, and that Shapira pay the Murray-Miller Company as damages the sum of $1. On May 25 this last decree was vacated, as entered by accident and mistake, and a new decree on the cross-bill entered as an amendment of the final decree, granting judgment for the Murray-Miller Company against Grennan and Shapira for $750.

Samuel Sigilman, of Boston, for plaintiff.

Peter Ghents and Charles J. Miller, both of Boston, for defendants.

BRALEY, J.

The findings of the master on unreported evidence having conclusively shown that the allegations of mutual mistake on which the plaintiff, the lessor, sought reformation of the lease in question can not be sustained, the original bill was dismissed rightly, leaving for our consideration the question whether the decree awarding damages to the plaintiff, the lessee, on the cross-bill, should be sustained. The lease recited that the defendant, the lessor, ‘does hereby demise and lease unto said lessee all the floors in the building * * * above the stores, meaning and intending hereto to demise and lease the second, third, fourth and fifth floors of said building as they now are, subject to alterations and repairs to be made by the lessor which alterations and repairs are more fully set forth in the memorandum of alterations and repairs hereto attached.’ The memorandum thus incorporated and made part of the lease required the lessor to remove on the second floor ‘the partition in the right half of the premises.’ The third floor was to be changed by the removal of all ‘inside partitions,’ the windows altered and ‘break wall on left-hand side of building from entrance on Washington street for installation of four windows.’ The partitions on the fourth floor also were to be removed, the balcony floor extended the entire length and width of the building, ‘so as to divide the entire fourth floor into two floors, the ceiling of the extension to be built one foot higher than the ceiling of the present balcony.’ The windows were to be remodeled ‘to conform to new alterations on this floor as on the third floor for the purpose of putting in four windows.’ The floors were ‘to be wired for electricity, with sockets for lights at places directed by the lessee, and the walls on all floors to be painted white throughtout the leased premises.’ In the rear of the building near the passageway freight elevators were to be built to run ‘to all floors in said building. The elevators shall carry weight of 2,950 pounds * * * and be 6x9 inside and shall be run by electricity.’ ‘Sufficient radiation so as to furnish at least 60 degrees of heat in zero weather to be installed on all floors' while in the attic two new windows were to be put in and ‘the old ones to be repaired.’ ‘All ceilings to be painted white.’ The master states that ‘in fact most of the alterations would be indispensable to the full enjoyment of these premises by the lessee.’

The defendant while admitting the agreement avers that its requirements have been waived. But the question of waiver is one of fact, and...