Perry v. J.L. Mott Iron Works Co.

• Decision Date: 06 January 1911
• Parties: PERRY v. J. L. MOTT IRON WORKS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 501

93 N.E. 798

PERRY v. J. L. MOTT IRON WORKS CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 6, 1911

Jan. 6 1911.

COUNSEL

J. E Hannigan, Isidor Fox, and W. I. Perry, for plaintiff.

Phipps, Durgin & Cook, for defendant.

OPINION

RUGG J.

This is an action of contract upon a lease of a store for a term of six years and two months. Its provisions now material were that the lessee would 'not injure, overload or deface the premises in any way, or suffer or permit the premises or any part thereof, during or at the termination of these presents, to be injured, overloaded or defaced in appearance, whether by removal of any fixture or otherwise; and * * * not make any alterations or additions during the term * * * except such as are hereinafter permitted, * * * and peacefully yield up to the lessor the premises, and all erections and additions made to or upon the same, clean and in good repair in all respects. * * * And it is agreed that the lessee may make such alterations and additions within said leased premises as may be necessary for his business, and may remove at the termination of this lease such tiling and special fittings as have been put in at his own expense, provided he puts the premises in as good repair as they were in at the beginning of said term.' The defendant pursuant to the lease built upon the premises six bathrooms with plaster walls covered with tiling, and installed appropriate fixtures and tiled floors, and a gallery, all of permanent construction for the purpose of adapting the premises for its business of selling bathroom and sanitary fixtures and plumbers' supplies. At the expiration of its lease the defendant did not remove any of these additions and alterations. This action is brought to recover the expense of removing them in order to adapt the premises to other uses and the rent for the time required in doing the work.

The trial court found that the bathrooms were trade fixtures, but were so constructed as to constitute an alteration and addition, and were built with the knowledge and consent of the lessor, but added nothing to the value of the premises and their removal was necessary in order to let the premises to another tenant. Under these circumstances the plaintiff cannot recover unless some provision of the lease gives this right. Pfister & Vogel Co. v. Fitzpatrick, 197 Mass. 277, 83 N.E. 878. It is plain that by the express terms of the lease changes like these actually made were contemplated and allowed. It is contended, however, that the conditional clause in the final...