Kurland v. Massachusetts Amusement Corp.

Decision Date01 November 1940
Citation29 N.E.2d 749,307 Mass. 131
PartiesKURLAND et al. v. MASSACHUSETTS AMUSEMENT CORPORATION. MASSACHUSETTS AMUSEMENT CORPORATION v. KURLAND et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Suffolk County; Sheehan, Judge.

Action of contract by Emmanuel Kurland and others, trustees, against the Massachusetts Amusement Corporation to recover rent for a theater, and an action by the Massachusetts Amusement Corporation against Emmanuel Kurland and others, trustees, to recover for the reasonable cost incurred by such plaintiff in repairing the theater after it had been damaged by a flood. The jury found for the plaintiff in the first case and the plaintiff in the second case, and both cases were referred to an auditor, and the Massachusetts Amusement Corporation took exceptions.

Exceptions overruled.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, COX, and RONAN, JJ.

H. W. Packer and L. Weyburn, both of Boston, for Massachusetts Amusement Corporation.

E. Kurland, of Boston, for Kurland and others.

RONAN, Justice.

The first action is in contract. The plaintiffs seek in the first count of the declaration to recover $10,000, the rent for April and May, 1936, of a theatre in Springfield, in accordance with a lease given on August 15, 1929, to the defendant's assignor. They seek in the second count to recover $9,000-the difference between the amount of rental fixed by the lease and the amount paid by the defendant during 1933 and 1934, at the rate as reduced by two written agreements, one for each of said years-on the ground, as the plaintiffs allege, that the defendant did not pay the reduced rental promptly and punctually at the times designated in the lease, as it was required to do by the provisions of each of these two written agreements. Besides a general denial, the defendant set up in its answer a claim for abatement of rent for the period from March 19, 1936, to April 10, 1936, both inclusive, during which, the defendant contends, it was prevented from using the theatre on account of the damage sustained by the flooding of the Connecticut River. The answer also alleged that the plaintiffs waived the prompt payment of rent provided for in each of the two written agreements. The jury found for the plaintiffs on the first count in the sum of $9,032.26, which represented the rent for April and May, 1936, less an abatement, together with interest on the amount found due. They also found for the plaintiffs on the second count in the sum of $9,000 with interest, which represents the difference between the lease rental and the amounts paid during 1933 and 1934 by the defendant at the rate fixed by the written agreements.

The second action is brought by the defendant in the first action to recover $10,655.48 for the fair and reasonable cost incurred by it in repairing and restoring the theatre after it had been damaged by the flooding of the Connecticut River, which, it is alleged, the lessors, the defendants in this action were obligated under the terms of the lease to repair and restore. The defendants' answer contained a general denial, an allegation of payment, and averments that the amounts expended by the plaintiff were excessive, that some of the repairs were negligently made, that some were made necessary by the negligence of the plaintiff, and that some of the items were for repairs that the plaintiff was not required to make under its lease. The jury found for the plaintiff in the sum of $3,908.22.

Both cases were referred to an auditor and were then tried together. The plaintiffs in the first case are hereinafter referred to as the lessors and the defendant in that case is referred to as the lessee. The cases are here on various exceptions taken by the lessee.

We consider the first case. The Gilmore estate, the owner of the premises, executed, in 1919, a lease of the premises expiring on August 31, 1944. One Stoneman acquired the interest of the lessee in this lease in 1929, and subleased the premises to a predecessor in title of the present lessee for the term from September 1, 1929, to August 31, 1944, at an annual rental of $60,000 payable in monthly instalments of $5,000 each, in advance on the tenth day of each month and upon being shown that certain payments had been made by the lessor to the Gilmore estate. The lessee was required to keep the interior of the theatre and the furniture and equipment in good repair. The furniture and equipment, which were put in the theatre by the lessee to replace existing furniture and equipment, were, upon the termination of the lease, to become the property of the lessors. If the premises were damaged by any cause beyond the control of the lessee, then the lessors covenanted that they would promptly repair or restore the premises to their former condition unless the owner of the property exercised its option to terminate the underlying lease. If the premises were rendered untenantable or unfit for presenting public performances as a result of such damage or the making of repairs, then the rent was to be abated in accordance therewith.

The Connecticut River flooded a part of the city of Springfield in March, 1936. At midnight on March 18, 1936, water began to flow into the besement of the theatre. The lessee installed several pumps to keep the water out of the basement, but the river kept rising and it became necessary at eight o'clock in the evening of March 19, 1936, to close the theatre. About two-thirds of the theatre floor, which sloped toward the stage, was submerged,and the seats and carpet in that area were under water for four days. The paint and plastering were injured and the curtains and other equipment damaged. There was evidence that, on March 23, 1936, Stoneman told an official of the lessee ‘to go ahead and do the work as expeditiously and as economically as possible, the question of who should pay and for what items to be left open and decided later.’ The liability of payment of the expense, it could be found, was to be determined in accordance with the lease. The repair and restoration of the premises were completed by the lessee and the theatre was reopened on April 11, 1936.

The lessee has not paid the rent for April and May, 1936, as it had not been reimbursed for the amount expended in the repair of the theatre and the amount to be allowed for the abatement of the rent had not then been settled. The lessee contended, and introduced evidence to show, that it had acted in good faith and with reasonable diligence in restoring the theatre, and that it was entitled to an abatement of rent from March 19, 1936, to April 11, 1936, amounting to $3,763.43. The condition of the theatre after the flooding was narrated in great detail in the auditor's report and by oral testimony, and the work of various kinds that it was necessary to do, together with the time required for its performance, was fully shown by the evidence. Besides, there was testimony that the damage ought to have been repaired and the theatre fully restored to its former condition and public performances resumed long before they were. The time reasonably required for the completion of the work determined the period during which the lessee was entitled to an abatement of the rent, and the ascertainment of that period was properly submitted to the jury. Willey v. Fredericks, 10 Gray 357;Cary v. Whiting, 118 Mass. 363;Rich v. Smith, 121 Mass. 328;Ware v. Hobbs, 222 Mass. 327, 110 N.E. 963, L.R.A.1916F, 276.

On July 27, 1932, Stoneman and the lessee's assignor executed a written agreement, reducing the rental for 1933 from $60,000 to $54,000, which provided ‘that the time for the payment of the rent stipulated in said lease and as modified herein is of the essence of the contract’; that the agreement is made upon the express condition that the rent shall be paid promptly on the day it is due; and that if the monthly rent is not paid within five days after it is due, ‘in any one month, then and in that event, this agreement shall become ipso facto, null and void, and the original rent reserved in said lease shall at once become due and payable, with the same effect and in the same manner as if this agreement had not been entered into.’ A similar agreement was made in February, 1934, providing for a reduction of the rent during 1934 from $60,000 to $57,000. The lessors contend that the failure of the lessee to pay a monthly instalment of the reduced rent during the year for which the reduction was granted constitutes a breach of the agreement and makes the lessee liable to pay the original rental of $60,000 for that year. The lessee contends that there was no breach of these two agreements; that if there were a breach it was waived; and that the only effect of a breach would be to restore the rent to the rate fixed in the lease for merely that part of the unexpired year mentioned in the agreement. The jury could find that there was a breach of these two agreements, and they could further find that there was no waiver of them by Stoneman.

Each of these agreements dealt with a reduction in the annual rental for a designated calendar year, and if any monthly instalment was not paid at the prescribed time the rental fixed by the original lease was to become at once due and payable. If the agreement terminated at this point, there might be strength in the lessee's contention that the lease rental was to become effective only for the remaining months of that year. But the agreement did not state that the old rate would be stored merely for the remaining months; instead, it expressly provided that the rent reserved in the lease not only would become due and payable but would become so ‘with the same effect and in the same manner as if this agreement had not been entered into.’ It is presumed that the parties thought that they had fully set forth their agreement and that the terms they employed appropriately and adequately expressed the...

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