Lowell v. Strahan
| Decision Date | 30 June 1887 |
| Citation | 12 N.E. 401,145 Mass. 1 |
| Parties | LOWELL and others v. STRAHAN. (Two Cases.) |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F.C. Lowell and A.L. Lowell, for plaintiffs.
The lease to Thomas Strahan set forth in the report either (1) covered the outside surface of the outer walls of the premises described therein, or (2) did not cover it. The case of John Lowell v. Strahan is based upon the second of these alternatives; the case of Augustus Lowell v. Strahan is based upon the first.
When the several rooms or stories of a building are let by separate leases, those parts of the building which are used in common by the tenants (such as the stairs, entries, and approaches) are not covered by the leases, but remain in the possession and control of the landlord. Larue v. Farren Hotel Co., 116 Mass. 67; Readman v. Conway, 126 Mass. 374; Looney v. McLean, 129 Mass 33. The same principle applies to the outside walls of the building, with their fixtures; for it is clearly settled that the occupant of a building, and not its owner, is liable for injuries arising from a lack of due care to keep it in a safe and proper condition, and that a tenant who has hired a whole building is the occupant of its outside walls to the exclusion of the landlord. Leonard v. Storer, 115 Mass. 86. And yet it is equally clear that the owner of a building, who has let it in separate parts to different tenants, still retains the control and remains the occupant of the exterior portions of the building, and is liable to any one injured through his neglect to keep these portions in safe condition. See Kirby v. Boylston Market Ass'n, 14 Gray, 249, where this question was presented for the first time. See, also, Milford v Holbrook, 9 Allen, 17; Shipley v. Fifty Associates, 101 Mass. 251, and 106 Mass. 194; Watkins v. Goodall, 138 Mass. 583; Donohue v. Kendall, 50 N.Y.Super.Ct. 386; Henkel v. Murr, 31 Hun, 28; McMartin v. Hunnay, 10 Ct.Sess.Cas. (3d Ser.) 411. The only case maintaining a doctrine contrary to that of Shipley v. Fifty Associates is Riddle v. Littlefield, 53 N.H. 503.
There is another class of cases which sustain the distinction just taken, viz., that while the lessee of a whole building hires it, both inside and out, together with the land upon which it stands, yet the lessee of a particular room hires only the inside of that room. When a building is destroyed by fire, it is held that the lease of the whole of the building is not terminated by such destruction, on the ground that the land, as well as the building, is covered by the lease, and, though the building is destroyed, the lease still attaches to the land. Rogers v. Snow, 118 Mass. 118. On the other hand, it has been held that the destruction of a building terminates the lease of a room therein, because, as the subject of the lease has been destroyed, there is nothing to which the lease can attach. Shawmut Bank v. Boston, 118 Mass. 125. Now, if the outer walls are covered by the lease, and are not destroyed, it would seem that the lease should attach to them, and therefore should not be terminated. It has been held, however, that the destruction of a building terminates a lease of the cellar and basement, although the brick walls are left standing around the demised premises. Stockwell v. Hunter, 11 Metc. 448, 454; Kerr v. Merchant's Exch. Co., 3 Edw.Ch. 315; Winton v. Cornish, 5 Ohio, 477; McMillan v. Solomon, 42 Ala. 356; Harrington v. Watson, 11 Or. 143, 3 P. 173.
The only case in this state in which the right of a tenant to place a sign upon the outside of a building was called in question, although not directly in point, yet sustains the contention of the plaintiff in the case at bar. See Pevey v. Skinner, 116 Mass. 129. A tenant has, no doubt, the right to place on the outside of the building, for the advertisement of his own business, such sign or signs as are customary and reasonable; but this customary privilege is not a lease of the walls, and it gives the tenant no right therein, except that of displaying reasonable signs for his own use. Martyr v. Lawrence, 2 De Gex, J. & S. 261; Doe v. Galloway, 5 Barn. & Adol. 43.
It is well-settled principle of law that, if one wrongfully sells the property of another, the owner, instead of suing the wrong-doer in trover, may elect to treat him as his agent, and may recover from him, in an action for money had and received, all sums paid to him by the purchaser of the property. Gilmore v. Wilbur, 12 Pick. 120. This form of action has been often sustained in cases like the case at bar, where the defendant had received rents and profits from property belonging to the plaintiff. Blunden v. Baugh, 4 Croke, 302; Hasser v. Wallis, 1 Salk. 28; Monypenny v. Bristow, 2 Russ. & M. 117; Nugent v. Riley, 1 Metc. 117; Hills v. Bearce, 9 Allen, 403; Haldane v. Duche's Ex'rs, 2 Dall. 176; O'Conley v. Natchez, 1 Smedes & M. 31; and see Arris v. Stukely, 2 Mod. 260.
Augustus Lowell v. Thomas Strahan. If the court is of opinion that the outside of the wall is a part of the premises leased, the defendant is only put upon the other horn of the dilemma, because, if the outside of the wall is covered by the lease, the provisions of the lease apply to it, and the defendant has violated his covenant not to underlet. Defendant claims that his agreement with Jones, McDuffee & Stratton was a license, not a lease. See Francis v. Hayward, 22 Ch.Div. 177; Snyder v. Hersberg, 11 Phila. 200. In the case at bar all the elements which constitute a lease were present. The question whether a contract of this sort is a lease or a license has never arisen in the case of a sign, but it has arisen under the laws for the assessment of poor rates in England, in cases which bear a close resemblance to the case at bar. See Cory v. Bristow, 2 App.Cas. 262; Electric Tel. Co. v. Overseers of Salford, 11 Exch. 181; Lancashire, etc., Telephone Co. v. Overseers of Manchester, 14 Q.B.Div. 267. The plaintiff submits that the question of damages in this action is not properly before the court.
Alfred Hemmenway and D.F. Kimball, for defendants.
In their first action the plaintiffs seek, on a count, for money had and received, to recover $675, and in their second action they seek damages for the breach of defendants' covenant to keep in repair, and not to underlet or make alterations and additions. It is submitted that neither claim is tenable. An action for money had and received will not lie to try the title to property between two litigating parties. Bigelow v. Jones, 10 Pick. 161; Kittredge v. Peaslee, 3 Allen, 237; 2 Greenl.Ev. § 120. The defendant received the money as his own, and not for the purpose of paying it over to the plaintiffs, or under any trust which makes it his duty to pay it over. Butterworth v. Gould, 41 N.Y. 450; Lawrence v. Batcheller, 131 Mass. 504, 507; Moore v. Moore, 127 Mass. 22. The question in dispute in this action for money had and received is one of title. The contention of the defendant is that, by virtue of his lease, he was entitled to the use of the outer wall. Parol evidence is admissible to apply the description in a deed. Lovejoy v. Lovett, 124 Mass. 270, 274; Houghton v. Moore, 141 Mass. 437, 6 N.E. 517. See especially, Riddle v. Littlefield, 53 N.H. 503. "Any right of way or other easement necessary to the enjoyment of premises granted will pass as appurtenant, although there is no express mention of easements, privileges, or appurtenances." Hooper v. Farnsworth, 128 Mass. 487; Oliver v. Dickinson, 100 Mass. 114, 117; Sherman v. Williams, 113 Mass. 481. The original lessors have no right of action against the sublessees. Patten v. Deshon, 1 Gray, 330.
If the outer surface of the wall did pass by the demise, it is submitted that the facts do not disclose a breach of the covenant to keep in repair, and not to underlet or make alterations and additions. Allowing the sign of Jones, McDuffee & Stratton to remain, for a pecuniary consideration, was not an underletting to them; it was a mere license. Pevey v. Skinner, 116 Mass. 129; White v. Maynard, 111 Mass. 250, 255; McCrea v. Marsh, 12 Gray, 211; Burton v. Scherpf, 1 Allen, 133. The placing of the sign by Jones, McDuffee & Stratton on the building would not subject them to an action for use and occupation. Bacon v. Parker, 137 Mass. 309, 312. A covenant not to assign or underlet is always construed strictly. O'Keefe v. Kennedy, 3 Cush. 325, 327. But if the agreement with the sign-owner were an underletting, it would have been valid until the plaintiffs had exercised their option to terminate it. Bemis v. Wilder, 100 Mass. 446; Shattuck v. Lovejoy, 8 Gray, 204; Tayl.Landl. & T. § 412. If there were a breach of covenant not to underlet, the plaintiff adduced no evidence of special damage, and only nominal damage will be presumed.
OPINION
We think that the outside of the front wall was part of the premises demised in the lease of the first floor in the building. If the language had been used in a conveyance in fee-simple, no question could have been made that the walls of the building were included. Undoubtedly the owner of a building might, in conveying the lower and upper portions of it to different grantees, except the outside of the walls as he might do in conveying the whole building to one grantee. In every case it is a question of intention, found in the language used as applied to the subject-matter, and construed in connection with the whole instrument. A lease for years by indenture differs from a deed in fee-simple, not only in the nature of the estate created, but also in the fact that the instrument of demise is an agreement between the parties, containing mutual covenants affecting their rights in the premises. The words of description used...
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