Hosken, Inc. v. Hingham Management Corp.

• Decision Date: 07 April 1952
• Parties: HOSKEN, Inc. v. HINGHAM MANAGEMENT CORP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 232

105 N.E.2d 232

328 Mass. 588

HOSKEN, Inc. v. HINGHAM MANAGEMENT CORP.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 3, 1952.

Decided April 7, 1952.

J. M. Hall, Boston, for plaintiff.

C. L. Donahue, Boston, for defendant.

Before LUMMUS, RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

RONAN, Justice.

This is an appeal by the plaintiff from a final decree dismissing the bill and allowing the counterclaim of the defendant for electricity and water furnished to the plaintiff.

The plaintiff contends that it suffered damage from leaks from the roof, windows and doors which the defendant in violation of the terms of a lease failed to put in first class condition; that the defendant demands excessive charges for electricity and water; and that the plaintiff has been damaged by the interruption of its operations by cutting off its supply of electricity and by unjustified threats of eviction. All these contentions raised questions of fact and the judge's findings were adverse to the plaintiff.

The plaintiff challenges these various findings of fact. The evidence consisted mainly of oral testimony together with nearly a score of exhibits. The correctness of these findings is open on this appeal but, under the well established rule, findings made on oral testimony are not to be disturbed unless shown to be plainly wrong. Comstock v. Bowles, 295 Mass. 250, 253-254, 3 N.E.2d 817; Barnum v. Fay, 320 Mass. 117, 180, 69 N.E.2d 470; McKellar v. Hazen, 325 Mass. 714, 719, 92 N.E.2d 597. As to findings based upon documentary evidence, this court stands in the same position as the trial judge and reaches its own conclusion unaffected by the findings made by the trial judge. Harvey-Watts. Co. v. Worcester Umbrella Co., 193 Mass. 138, 143, 78 N.E. 886; Pitman v. Pitman, 314 Mass. 465, 475-476, 50 N.E.2d 69, 150 A.L.R. 509; Eno v. Prime Manuf. Co., 314 Mass. 686, 700-701, 50 N.E.2d 401; Attorney General v. Forever Amber, 323 Mass. 302, 309, 81 N.E.2d 663. We must examine the evidence, and findings of fact based wholly or partly upon oral testimony are not to be set aside unless we are satisfied, after giving to the oral testimony all the weight that the trial judge could justifiably attribute to it, that, nevertheless, his findings are plainly wrong. Malden Trust Co. v. Brooks, 291 Mass. 273, 279, 197 N.E. 100; Berry v. Kyes, 304 Mass. 56, 57-58, 22 N.E.2d 622; Boston v. Santosuosso, 307 Mass. 302, 332, 30 N.E.2d 278; Murphy v. Hanlon, 322 Mass. 683, 685, 79 N.E.2d 292. The question for us is not the conclusion we might reach from what appears upon the printed record 'but whether it can rightly be said that the findings made by the judge who saw the witnesses and heard them testify is plainly wrong.' Berman v. Coakley, 257 Mass. 159, 162, 153 N.E. 463, 465; American Employers' Ins. Co. v. Webster, 322 Mass. 161, 163, 76 N.E.2d 130; Ross & Roberts, Inc. v. Simon, 326 Mass. 12, 17, 92 N.E.2d 570.

We summarize the salient facts which form the background of this controversy. The defendant on October 12, 1950, leased to the plaintiff for the term of one year, with the right to two successive renewals of one year each, the entire building (except a closet or transformer room containing electrical equipment) known as building 54 in the Bethlehem-Hingham Naval Industrial Reserve Shipyard which was owned by the United States and had been leased to the defendant. The lease to the plaintiff was subject to this head lease, which included a large tract of land together with several buildings. The building demised to the plaintiff had been used by the navy during the last war and evidently had not been occupied since it was vacated by the navy. This building contained 8,560 square feet. The plaintiff was engaged in designing and manufacturing furniture and at times employed as many as nine or ten persons including three finishers who worked as independent contractors and who frequently worked on Saturdays and Sundays. About the time the lease was executed the defendant, who was obligated by its terms to put the demised premises in good condition, sent its employees, whom it regularly employed to maintain the various buildings in the shipyard, to repair the floor, to remove partitions, and to put the premises in first class condition. The plaintiff moved in about the time the lease was signed and before this work was completed. The plumbing was put in order and so was the electrical system. With the permission of the defendant, the plaintiff had a hole cut in the roof and had installed a ventilator to take off the fumes from booths where the furniture was sprayed with lacquer. The day after Thanksgiving in 1950 the flashing on the corner of the tar and gravel roof was...