Perry v. Wilson Bros., Inc.

• Decision Date: 01 July 1927
• Citation: 157 N.E. 579,260 Mass. 519
• Parties: PERRY v. WILSON BROS., INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

260 Mass. 519

157 N.E. 579

PERRY

v.WILSON BROS., INC.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1927.

Report from Superior Court, Suffolk County; H. A. Dubuque, Judge.

Action of contract by Alonzo W. Perry against Wilson Bros., Inc., to recover for breach of a lease. Verdict for plaintiff, and case reported. Verdict for plaintiff increased, and judgment entered for plaintiff on verdict as so increased.

M. L. Orloy, of Boston, for plaintiff.

J. J. Curran, of Boston, for defendant.

WAIT, J.

This is an action by a lessee against a lessor under a written lease to recover loss suffered in consequence of a breach of the terms of the lease, under a provision that, if the lessee failed to perform any of its covenants, the lessor might re-enter as of his former estate and determine the lease, and that in case of such determination, the lessee should be liable to the lessor ‘for all loss and damages sustained by the lessor on account of the premises remaining unleased or being let for the remainder of the term for a less rent than herein reserved.’

There was no dispute that the terms of the lease were broken and that the lessor rightfully re-entered and determined it; nor that he suffered certain losses through inability to obtain as great rent during parts of the remainder of the term, and incurred certain expenses in connection with reletting for repairs and changes made by him. No question was raised of the good faith of the lessor, nor of the exercise of good judgment in the extent or cost of the repairs and changes.

The contentions of the defendant are, that it was not liable upon the facts. The plaintiff contends that he is entitled to recover for certain items not allowed by the judge. The case is before us upon a report after trial to a jury.

The lease, which was in printed form, contained this typewritten clause inserted before the habendum:

‘The lessee agrees to place in the hands of the lessor $1,083.33 on or before December 1st, 1920, said $1,083.33 shall be held by the lessor during the full term of the lease as a guarantee of the fulfillment of the terms of the lease by the lessees and is to remain the lessor's in case of failure of the lessees to live up to said terms and covenants.’

The amount, $1,083.33, equals one month's rent.

[1][2] The defendant contends that this clause is an agreement for security for all losses sustained from nonfulfillment of the lease, which rendered the later printed covenant, quoted above, nugatory; and that as the plaintiff has admittedly retained the $1,083.33, a verdict should have been directed in its favor upon its motion therefor. The contention is not sound. Where both written and printed clauses in a lease can stand together they are to be so interpreted as to give force to both. If they cannot, then the written matter controls. Ball v. Wyeth, 8 Allen, 275. It is manifest that the amount deposited was security, that the two provisions can stand, and that the defendant receives all it is entitled to if the deposit is credited upon any amount for which it is...