Judkins v. Charette

• Decision Date: 01 March 1926
• Citation: 255 Mass. 76,151 N.E. 81
• Parties: JUDKINS v. CHARETTE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

255 Mass. 76

151 N.E. 81

JUDKINS

v.CHARETTE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1926.

Appeal from Superior Court, Suffolk County; Morton, Judge.

Suit in equity by Lillian E. Judkins against Thomas J. Charette and others to compel defendants to execute a new lease and to restore possession and control of premises to plaintiff.Decree for plaintiff, and respondents appeal.Modified, and, as modified, affirmed.

S. Rosenberg, of Boston, and T. J. Charette, Jr., for appellants.

C. C. Barton, Jr., of Boston, for appellee.

CROSBY, J.

By indenture dated January 5, 1920, one Norton leased to the plaintiff a certain building known as the Eagle Theatre, in Oak Bluffs on the island of Martha's Vineyard, for the term of five years from the date of the lease.The lease recited that the lessor agreed to renew it at the expiration of the term for a further period of five years, if the lessee so desired and should notify the lessor in writing to that effect on or before October 1, 1924.The new lease was to include all the terms and conditions of the original lease except the right to a further renewal.On September 15, 1924, the plaintiff duly notified one Darling, who then was the owner of the reversion, of her intention to continue the lease for five additional years.

By deed dated November 29, 1924, recorded January 5, 1925, Darling conveyed the premises to the defendants subject to the rights of the plaintiff as lessee.No new lease was executed to the plaintiff by the defendants or by their predecessor in title, nor was such lease demanded by her before the bringing of this suit.All rent due under the original lease was paid.An additional instalment of $500, on account of the additional term, became due February 10, 1925.The plaintiff's husband testified that on January 30, 1925, he sent by mail to the defendant Charette the plaintiff's check for the amount due, together with a letter reciting that the check was in payment of rent due on February 10, 1925.Charette testified that he did not receive the check or the letter; the plaintiff testified that the check was not returned.The judge of the Superior Court before whom the case was tried found that the rent in question had not been paid when suit was brought.

On March 19, 1925, the defendants, without notice to or demand on the plaintiff or knowledge on her part that the check had not been received, entered the theatre building for the purpose of terminating the lease for breach of the conditions thereof, and on the next day notified her to that effect by letter.On March 23, 1925, the bill in this case was filed, and on the following day the plaintiff tendered to the defendants $550 in payment of the rent due and for the expenses of the entry.The defendants refused to accept the amount so tendered.This suit is brought to compel the defendants to execute and deliver to the plaintiff a new lease for the term of five years from January 5, 1925, and to restore possession and control of the premises to her.The evidence before the trial judge, in accordance with the order appointing the commissioner to take it, is reported.

The lease recited that the lessee should at the end of the term deliver up the premises to the lessor in as good order and condition, reasonable use and wear thereof excepted, as they were in at the date of the lease, or might be put into by the lessor, and that the lessee should not make or suffer any waste thereof.The defendants contend that they were entitled to take possession of the premises for breach of the conditions of the lease relating to waste, the payment of rent, and the making of repairs.The judge found that during the summer of 1924, the building was in as good order and condition, reasonable use and wear thereof excepted, as when the lease was executed on January 5, 1920, that the blowing down of a large sign attached to the roof had caused leaks in it, and although some repairs had been at once made the roof was not in proper condition ‘to go through the winter.’His further finding is as follows:

‘Upon all of the evidence I find that on January 5, 1925, and up to the time when the defendants made their entry on March 19, 1925, the roof of the building leaked in several places, mostly at the gable ends and where the sign had been fastened to the roof, that the water had run in on the metal ceiling and caused some rusting away along certain joints, and left streaks of rust thereon and had discolored the walls in places, that there were two or three bad cracks running down through the rear wall, although whether caused by settlement or by water and frost did not appear, that the water had caused certain plates supporting the roof trusses to rot, that in and about the window and door openings water came in due to action of the temperature and elements, and that there were some other minor repairs required, incidental to the conditions described.’

In accordance with the terms of an interlocutory decree entered March 26, 1925, and shortly after the bill was filed, the defendants proceeded to make such repairs on the building as they deemed necessary to stop the leaks, at an expense of $252.68, which sum was found by the court to be the reasonable cost of such work as was needed therefor.It appears that the construction of the walls and roof of the building required repairs from time to time, and especially after the winter season and after heavy storms to keep the building watertight.It was not heated and was used only during the summer months.From the subsidiary facts found by the judge, his ultimate conclusions were that on and after January 5, 1925, and at the time of entry by the defendants, the lease was in full force and effect for a further term of five years upon the same terms and conditions except the right for further renewal; that the plaintiff had not made or suffered any strip or waste of the demised premises; and that the plaintiff's failure to pay the installment of rent was unintentional and due to accident.

It is plain that the language of the lease which gave the lessee a right of renewal for five additional years contemplated the giving of a new lease or something equivalent thereto in order to bind the parties for the additional period.Leavitt v. Maykel, 89 N. E. 1056, 203 Mass. 506, 509,133 Am. St. Rep. 323;Hann v. County of Hampden, 145 N. E. 258, 250 Mass. 107;Wit v. Commercial Hotel Co.(Mass.)149 N. E. 609.

[2] Although the lease by its terms required the giving of a new lease or something equivalent thereto to bind the parties for the additional term, it does not follow that the plaintiff is without remedy; as she seasonably gave notice of her desire to renew, the contract for renewal will be specifically enforced in equity.Ryder v. Robinson, 109 Mass. 67;Toupin v. Peabody, 39 N. E. 280, 162 Mass. 473;O'Brien v. Boland, 44 N. E. 602, 166 Mass. 481;Leominster Gaslight Co. v. Hillery, 83 N. E. 870,197 Mass. 367;Albiani v. Evening Traveler Co., 107 N. E. 406, 220 Mass. 20, 25.The defendants as reversioners took title subject to the rights of the plaintiff under the lease.Their rights are subordinate to the plaintiff's rights under the lease and they are bound by the covenants therein contained to renew it.Carpenter v. Pocasset Manuf. Co., 61 N. E. 816, 180 Mass. 130.The covenant for renewal was a covenant running with the land.Leominster Gaslight Co. v. Hillery, supra.

It was said in Delano v. Smith, 92 N. E. 500, 501, 206 Mass. 365, 370(30 L. R. A. [N. S.] 474) that waste ‘is the violation of an obligation to treat the premises in such manner that no harm be done to them and that the estate may revert to those having an underlying interest undeteriorated by any willful or negligent act.’Pynchon v. Stearns, 11 Metc. 304,45 Am. Dec. 207;Massachusetts Home Missionary Society v. Sirianni, 252 Mass. 352, 147 N. E. 823;United States v. Bostwick, 94 U. S. 53, 24 L. Ed. 65;Gwinn v. Rogers, 115 S. E. 428, 92 W. Va. 533.Whether the lessee committed or permitted waste was a question of fact.The finding of the judge that the plaintiff had not made or suffered any waste of the demised premises cannot be said, upon the evidence, to have been unwarranted.

It is settled that although time is of the essence in the exercise of an option to renew (Donavan Motor Car Co. v. Niles, 140 N. E. 304, 246 Mass. 106, and cases cited), it...