R.H. Stearns Co. v. Anderson
| Decision Date | 26 October 1939 |
| Citation | 304 Mass. 138,23 N.E.2d 114 |
| Parties | R. H. STEARNS CO. v. ANDERSON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
On report from Superior Court, Suffolk County; Williams, Judge.
Suit by the R. H. Stearns Company against Isabel Anderson for the interpretation of a paragraph in a lease given by defendant to plaintiff and for other relief, wherein defendant joined in the prayer for an interpretation. On report.
Decree in accordance with opinion.J. Wiggin, J. A. Plummer and F. W. Campbell, all of Boston, for plaintiff.
T. Hunt, of Boston, for defendant.
This is a suit for the interpretation of a paragraph relating to taxes in a lease given by the defendant to the plaintiff on September 29, 1923. There is also a prayer that the court determine what amounts, if any, are now due from the plaintiff to the defendant on account of taxes assessed upon the demised premises as of April 1, 1934, January 1, 1935, and January 1, 1936, and upon what dates any such amounts became due and payable. No question of pleading or procedure has been raised. The defendant joins in the prayer for an interpretation of the lease and states her contentions as to the amounts claimed by her to be due to her. Jurisdiction is found in G.L.(Ter.Ed.) c. 213, § 3, Tenth A, and in Rule 101 of the Superior Court (1932), adopted under the authority of that statute.
The lease covers a large mercantile building, used as a dry goods store, at the corner of Tremont Street and Temple Place in Boston. It begins with October 1, 1923, and runs for a term of forty years. The paragraph in dispute immediately follows the lessee's covenant to pay rent. The material part of it reads thus: ‘In addition to the monthly installments of rent above provided for, Lessee hereby covenants to pay to Lessor on the first day of each month during the term of this lease, in like gold coin, a sum equal to one-twelfth (1/12) of the amount of the city, county and state taxes assessed upon the premises the tax year previous, and upon the first day of November of each and every year, said Lessor and Lessee shall adjust said payments so that the Lessee shall in each and every year of said term pay the amount for which said premises shall be liable for such taxes in that year; and in all, shall pay all taxes to which the demised property, and any and all additions thereto, shall become liable for forty (40) years from and after October 1, 1923; it being understood that Lessee shall pay all such taxes and shall also pay all other assessments and charges and water rates for which the premises may become liable during the said term except betterments; * * *.’
The immediate cause of the bringing of this suit seems to have been the change in the date for the assessment of local taxes from April 1 to January 1 in each year, brought about by St.1933, c. 254. See particularly section 29, G.L.(Ter.Ed.) c. 59, § 11. This change first affected the date of assessment in 1935. St.1933, c. 254, § 66. Before the change and while taxes were assessed as of April 1 the plaintiff as lessee had paid to the defendant as lessor each month from May 1 to October 1, inclusive, one twelfth of the preceding year's tax bill. On November 1 in each year the plaintiff had paid one twelfth of the tax bill of that year, and at the same time the parties had made an adjustment of preceding payments from May 1 to October 1, inclusive, so that the total of the payments made from May 1 to November 1 inclusive was equal to seven twelfths of the tax bill of that year. The balance of the tax bill assessed for each year had been paid in five equal instalments, one each on December 1 and on the first of the January, February, March and April next following, so that by the April 1 payment of each year the entire tax bill assessed as of April 1 of the preceding year had been paid. The current tax bills have often been available before November 1, so that the parties have sometimes made the annual adjustment on October 1, instead of November 1. This same method of payment had also prevailed under a previous lease originally given in 1905 by the defendant's predecessor in title to the partnership of R. H. Stearns and Company, the plaintiff's predecessor, to which the defendant and the plaintiff had later become parties through a conveyance of the reversion to the defendant and an assignment of the lease to the plaintiff. This former lease contained a similar tax paragraph. The method of payment just described had also been confirmed by correspondence between the parties in 1922.
After January 1, 1935, the plaintiff continued to pay monthly installments of one twelfth of the 1934 tax until October 1, 1935, when it paid one twelfth of the tax assessed as of January 1, 1935 (the record reads April 1-an obvious clerical error), less an adjustment due to the fact that the five preceding payments, based on the 1934 tax, had been at a rate in excess of one twelfth of the tax for 1935. On the first of each month thereafter to October, 1936, inclusive, it paid one twelfth of the tax assessed as of January 1, 1935. On October 29, 1936, the plaintiff paid an adjustmentof six twelfths of the difference between the tax for 1935 and that for 1936, and on November 1, and on December 1, 1936, it paid one twelfth of the tax assessed as of January 1, 1936. In other words, after the change in the assessment date the plaintiff continued to make instalment payments on the same basis as before, each equal to one twelfth of the last preceding tax bill, with adjustments in October which, as before, covered the period back to the preceding April and not to the preceding January. The issues in the case hinge principally upon whether or not the plaintiff was justified in thus continuing to pay after the change in the assessment substantially as it had paid before, and upon the effect of that change upon the tax paragraph of the lease.
If we begin by looking at the tax paragraph of the lease itself without regard to any interpretation which the parties may have placed upon it, the dominant purpose seems to be to throw upon the lessee the burden of ‘all taxes' for which ‘the demised property’ ‘shall become liable’ during the forty-year term ending September 30, 1963. This purpose is emphasized by repetition after the second semi-colon and by the inclusion of ‘all other assessments and charges and water rates for which the premises may become liable during the said term * * *.’ Taxes for which the demised ‘premises' or ‘property’ shall ‘be’ or ‘become’ liable can hardly be other than those for which a lien shall accrue against the property itself. In no other way can the property be or become liable. The plaintiff's suggestion that these expressions as to the property being or becoming liable refer only to the liability of the lessee (not the property) to pay the monthly instalments as previously set forth in the paragraph, and that those may not include all the taxes assessed during the term, is inconsistent with the precise meaning of the words used. That construction would reduce the reiterated assertions that the lessee is to pay all taxes to the rank of needless restatements of what had already been said. Moreover, in addition to taxes the lessee is to pay ‘all other assessments and charges and water rates for which the premises may become liable during the said term.’ Here the words ‘become liable’ cannot refer to any liability of the lessee to pay the monthly instalments, as there is no provision for the payment of those charges in instalments. The lease as a whole is so very clear in casting upon the lessee the burden of paying to the lessor sums equal to all taxes which may be assessed against the premises at any time during the forty-year term that we cannot regard it as open to any other construction. Welch v. Phillips, 224 Mass. 267, 268, 112 N.E. 651;Suter v. Jordan Marsh Co., 225 Mass. 34, 113 N.E. 580;Baker v. Horan, 227 Mass. 415, 419, 116 N.E. 808;Koshland v. American Woolen Co., 289 Mass. 308, 194 N.E. 102, 97 A.L.R. 928;Miller v. Wadsworth, Howland & Co., Inc., Mass., 5 N.E.2d 32. The case of Welch v. Gordon, 284 Mass. 485, 188 N.E. 239, is distinguishable because of differences in wording which there rendered the provision for monthly instalments dominant over other clauses. See Security System Co. v. S. S. Pierce Co., 258 Mass. 4, 154 N.E. 190.
Even if the words of the present lease were doubtful enough on this point to admit evidence to explain their meaning, no facts are shown which should lead us to adopt the plaintiff's suggestion hereinbefore stated. It is true that after the new lease was made in 1923 the lessee continued to pay to the lessor monthly...
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