Malden Knitting Mills, Inc. v. United States Rubber Co.

• Decision Date: 20 September 1938
• Citation: 16 N.E.2d 707,301 Mass. 229
• Parties: MALDEN KNITTING MILLS, Inc., v. UNITED STATES RUBBER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 229

16 N.E.2d 707

MALDEN KNITTING MILLS, Inc.,

v.UNITED STATES RUBBER CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 20, 1938.

Report from Superior Court, Middlesex County; Jesse W. Morton, Judge.

Action of contract on a written lease by the Malden Knitting Mills, Inc., against the United States Rubber Company. The trial judge directed the jury to return a verdict for the defendant and reported the case to the Supreme Judicial Court.

Order that judgment on the verdict be entered for defendant in accordance with terms of the report.Lee M. Friedman, of Boston, for plaintiff.

D. Burstein, of Boston, for defendant.

COX, Justice.

This is an action of contract upon a written lease of a one-story shed to the plaintiff. The trial judge directed the jury to return a verdict for the defendant and reported the case to this court. G.L.(Ter.Ed.) c. 231, § 111. The lease, which is a printed form with blank spaces appropriately filled in by typewriting, contains, among others, the following material provisions, which are printed: ‘2. * * * the Tenant [plaintiff] will at its expense make all repairs and renewals of whatever nature necessary to put and keep in good condition the premises. * * * 6. The Landlord [defendant] shall not be liable for damages * * * for injury or damage to person or property resulting from * * * water, rain or snow which may leak or flow from or into any part of said building, * * * or from any other place (provided, however, that the Landlord will be responsible for such damage from leaks outside of the demised premises as occurs after a reasonable time after the receipt of notice from the Tenant of such leaks); * * * neither shall the Landlord be liable for damage * * * caused by any other matter or thing. * * * 9. * * * The Tenant will indemnify, protect and save harmless the Landlord herein from any loss, cost, damage or expense caused by injuries or damage to persons or property while in, on, or about said premises herein leased * * * and any and all property of said Tenant which may be located or stored either in the demised premises, or the building of which the demised premises form a part shall be at the sole risk of said Tenant. * * * 26. It is expressly understood and agreed that the covenants and agreements herein undertaken and/or to be performed respectively by each of the parties hereto are severally and collectively mutually dependent and that performance of each and every covenant and agreement herein to be performed by either party is part of the consideration of this lease and a condition precedent to the performance of each and every covenant and agreement to be performed by the other party.’

At and prior to the time the lease was made, the roof of the demised shed, ‘to the actual knowledge of both parties, was in bad condition,’ and the plaintiff refused to sign the lease without the addition of provisions covering the ‘roof and interior conditions.’ Thereupon, and before the lease was signed, the following clause was inserted in typewriting: ‘29. The Tenant agrees to accept the premises in their present condition, except that the Landlord shall deliver the said premises in ‘broom clean’ condition and, within a reasonable time, will make the roof tight.' The term of the least began on August 1, 1933, and in that month the defendant made some repairs to the roof which were inadequate to make it properly ‘tight.’ In the winter of 1933-1934 the roof leaked and ineffectual repairs to it were made by the defendant. There was evidence from which it could be found that water which leaked through the roof of the shed caused damage to the plaintiff's machines that were stored in the leased premises.

The declaration contains two counts, one based upon clause 6 of the lease, the other upon clause 29. In both counts, the damages sought to be recovered are for injury to the plaintiff's machinery. The plaintiff consented at the trial that ‘this shall not be interpretated as an action to recover merely nominal damage.’ The report stipulates that ‘If the plaintiff on any theory of the case under the declaration is entitled to recover for damages to its personal property and machinery in the demised premises, the verdict for the defendant is to be set aside. * * *’ but that if the judge's ruling was correct the verdict is to stand. We treat the case as one in which damages are sought for injury to the plaintiff's machinery.

The typewritten clause 29 relates to the acceptance of the premises by the plaintiff ‘in their present condition, except that the * * * [defendant] will make the roof tight.’ By clause 2, which is printed, the plaintiff covenanted ‘to put and keep [the premises] in good condition.’ As to the effect of this covenant of the plaintiff, see Belcher v. McIntosh, 8 C. & P. 721 (173 Eng.Rep.Reprint 689); West v. Hart, 30 Ky. 258,7 J.J.Marsh. 258;Thomas v. Kingsland, 108 N.Y. 616, 14 N.E. 807. The plaintiff suggests that the typewritten provisions of clause 29 should prevail over the printed provisions of the lease. It is true that, where the clauses in an instrument are inconsistent, it is the usual rule of construction that such as are written or typewritten will control those that are printed, on the theory that the latter were left by inadvertence. But if all clauses can be retained and interpreted together, none is to be rejected. Ball v. Wyeth, 8 Allen 275, 278;Perry v. Wilson Bros., Inc., 260 Mass. 519, 521, 157 N.E. 579;Welch v. Gordon, 284 Mass. 485, 487, 188 N.E. 239. See Codman v. Hygrade Food Products Corp., Mass., 3 N.E.2d 759, 106 A.L.R. 1354. We think that clause 29, was inserted in the lease in order to relieve the plaintiff of so much of the obligation of its covenant as would otherwise require to make the roof ‘tight,’ if that was necessary to put the premises in good condition, and that there is no inconsistency. Compare Vass v. Wales, 129 Mass. 38;Weeks v. Wilhelm-Dexter Co., 220 Mass. 589, 108 N.E. 365;Perry v. Wilson Bros., Inc., 260 Mass. 519, 157 N.E. 579;Ginsburg v. Jacobson, 276 Mass. 108, 176 N.E. 918.

The plaintiff contends that the performance of clause 29 by the defendant is a condition precedent to ‘performance by the plaintiff of its obligations under * * * [clauses] 6 and 9’; in other words, the act of the defendant in making the roof ‘tight’ is a condition precedent to its right to claim exemption from liability for its failure to perform that act; that is, in order to claim exemption from liability, the defendant must first do something to remove the ground of that liability. We do not construe the provisions of the least as expressing any such intention of the parties.

The parties to the lease had an undoubted right, if they pleased, to make their covenants dependent or independent, Cunningham v. Morrell, 10 Johns., N.Y., 203, 6 Am.Dec. 332; Loud v. Pomona Land & Water Co., 153 U.S. 564, 576, 14 S.Ct. 928, 38 L.Ed. 822, and they have agreed that they shall be dependent by the provisions of clause 26. Where ‘the undertaking on one side, is in terms a condition to the stipulation on the other; as where one stipulates that he will perform the thing to be done, if the other shall have first performed some stipulation on his part,’ we have a condition precedent. But ‘even when words are used, which might be construed to be a condition in their ordinary sense, they shall not be so considered, if such construction is not consistent with the intent of the parties.’ Mill Dam Foundery v. Hovey, 21 Pick. 417, 438. It is the intention of the parties which must control. Knight v. New England Worsted Co., 2 Cush. 271, 287. It is not ‘material in what part of the instrument the conditional stipulation appears, if in its nature the one act must...