Lumiansky v. Tessier
| Decision Date | 27 November 1912 |
| Citation | 213 Mass. 182,99 N.E. 1051 |
| Parties | LUMIANSKY v. TESSIER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Gardiner & Milliken and F. A. Milliken, both of New Bedford, for appellants.
Edward Higginson, of Fall River, for appellee.
This is a suit in equity growing out of a written lease of certain premises to be used for a vaudeville and moving picture show. The lease was dated on the 3d day of May, 1909, for a term of three years from the 10th day of the same month. Among other clauses the lease contained these provisions
The plaintiff brought an action at law against the defendant for damages alleged to have arisen from a breach of the covenants of the lease, and the defendant commenced an action against the plaintiff and one Barnard Lumiansky for breach of covenants in the lease and for failure to pay rent. The three cases were tried together before a master, who, in accordance with the order entered by consent of all parties, filed in the suit at bar a single report covering matters in issue in all the cases. A final decree was entered, from which the plaintiff and Barnard Lumiansky appealed. At the time of the lease the building was not completed, but the building was licensed until August 1, 1909. St. 1908, c. 335. Before the expiration of that license the state inspector of the Massachusetts district police required certain work to be done in order to complete the building. This was done by the lessor, and thereafter another license was issued, which by its terms ran to August 1, 1910. Both these licenses were in the name of the owner of the building. Shortly thereafter the state police notified the lessor that certain interior changes must be made in the theater, with the suggestion that if they were not made he should recommend the revocation of the license. No notice was given to the lessee by the inspector or by the lessor, but the master finds that the lessee knew these requirements, and made no effort to put the premises in condition to meet them. The plaintiff has argued that, inasmuch as the license was issued to the lessor, his failure to see that it was continued in force was a breach of the lease, undertook the work that although the lessor undertook the work gratuitously, he is liable for failure in its performance. But this rule does not apply. Whether the license is one which should be issued to the owner of the building or to the occupant is of no consequence. The lease contains no covenants on the part of the lessor that the license shall be continued in force. The cause of its revocation was a failure to make repairs, changes and alterations in the interior of the theater, the obligation to do which under the terms of the lease rested on the lessee. For failure to perform his own obligations the plaintiff cannot hold the lessor responsible. This branch of the case is within the authority of Taylor v. Finnigan, 189 Mass. 568, 76 N.E. 203, 2 L. R. A. (N. S.) 973.
One of the matters specified by the inspector of the district police was an improper system of ventilation. As to this the master found that the ventilator openings as planned and constructed by the lessor were under the stage, and that at the request of the lessee they were placed over the stage, but upon condition that if they were not right the lessee would be obliged to alter them at his own expense, to which condition the lessee assented. For such a change plainly the lessor is not responsible under his lease. The lessee also excepts to the finding that the heating apparatus, which was installed in the cellar of premises belonging to the lessor and adjoining the leased premises, was not a compliance with the terms of the lease. But the lease did not require a heating apparatus to be installed on the premises. It was only to be connected with and adequate for the purpose of warming the demised premises. The master finds that in this respect the apparatus was sufficient. The lessee had implied license to use the premises where the heating apparatus was located, although not included in the demised premises, so far as necessary to enable him to warm the building. The fact that stores in the theater building were connected by piping is now of no consequence, because no complaint was made on this ground until after the actions were brought; and the master has found that the stores might easily have been disconnected by the lessee on the demised premises at small expense. Although the premises were not completed at the time of the lease, the master finds that they have been substantially completed, and the plaintiff has suffered no injury thereby.
The plaintiff's contention that he was evicted from the premises is not supported by the findings of the master. The fact that during an inspection of the theater by the state inspector the lessor ordered the lessee from the premises and was the aggressor in a trouble in which the parties came to blows is not enough, because the lessee was not deprived of any substantial beneficial use of the premises, and there was no intent on the part of the lessor permanently to evict him. While a landlord must be presumed to intend the natural consequences of his conduct, all the circumstances must be taken into account in determining whether there has been an actual expulsion of the tenant with the intent and effect of depriving him of the enjoyment of the demised premises or some substantial part of it. Skally v. Shute, 132 Mass. 367; McCall v. New York Life Ins. Co., 201 Mass. 223, 87 N.E. 582, 21 L. R. A. (N. S.) 38; Voss v. Sylvester, 203 Mass. 233, 89 N.E. 241. The violent expulsion of the tenant from the premises may have been found under all the circumstances to disclose no intent to deprive the lessee of possession, but merely to have been for the purpose of preventing his conversation with the inspector. It cannot be said that this inference was wholly unwarranted.
The contention cannot be sustained that the guaranty on which action was brought against Barnard Lumiansky was extinguished by a later guaranty for a larger amount signed by Barnard Lumiansky and one Mecaber. There is nothing to show that this may not have been a cumulative guaranty, leaving the earlier one in full force. It is not necessary to discuss in detail the other exceptions taken by the lessee. None of them can be supported, for the reason that they relate to matters about which the finding of the master on questions of fact, the evidence not being reported, is final and cannot be disturbed.
The plaintiff raises a question of practice. The final decree provides that the suit in equity be dismissed with costs, and that in the common-law action of the plaintiff against the defendant judgment shall be entered for the defendant with costs up to the date of an order consolidating the common-law case with the suit in equity, and finding that in the action at law of the defendant against the plaintiff and Barnard Lumiansky a debt is established of $1,800, with interest, and further that Tessier, having discontinued his action against the present plaintiff, the defendant in that action, judgment for $1,000, which is the amount of his guaranty, is to be entered against the other defendant, Barnard Lumiansky. The plaintiff argues first that this decree is erroneous, on the ground that the two actions at law having been consolidated with the suit in equity, there was thereafter but one case pending, and all issues must be settled in a single decree. The interlocutory order, upon the interpretation of which the decision of this point depends. After describing the two actions at law and reciting that the order was entered by consent of counsel in the equity suit and in the two actions at law, provided that the two actions at law 'be consolidated with this proceeding and damages assessed herein, should any be found due, and that said two actions at law be heard with this suit at a session of the court without juries.' No question arises as to the authority of the court to enter such an interlocutory order in invitum because this was made by consent of all parties. It was made by the superior court in the exercise of its powers as a court of...
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