Roberts v. Lynn Ice Co.

• Decision Date: 28 February 1905
• Citation: 187 Mass. 402,73 N.E. 523
• Parties: ROBERTS v. LYNN ICE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 402

73 N.E. 523

ROBERTS v. LYNN ICE CO.

Supreme Judicial Court of Massachusetts, Essex.

February 28, 1905

COUNSEL

Ira. B. Keith and Wm. H. Niles, for plaintiff.

James E. Odlin, for defendant.

OPINION

LORING J.

The plaintifff's right to recover on the first count depends upon the character of the instrument originally executed by the plaintiff's husband and extended by her after his death. If it was a lease, the icehouses were the property of the defendant for the term ending December 15, 1902, and the loss caused by their being burned to the ground is the defendant's loss for the unexpired part of that term for a portion of a year. If, on the other hand, the defendant under the instrument here in question was, as matter of contract, to have the use of the icehouses as a licenses under the plaintiff, the plaintiff was the owner of them at the time of the fire, and the loss falls on her. Furthermore in that case the plaintiff has not furnished that for which by the terms of the contract she was to be paid, namely the use of her icehouses, and the sum stipulated for is not due. So much is settled by Wells v. Calnan, 107 Mass. 514, 9 Am. Rep. 65.

The question presented by this case, therefore, is the question of the construction of this instrument originally made by Roberts on January 29, 1898, and extended by the plaintiff his widow, on January 27, 1902. By it, as originally drawn Roberts 'does let to said Ice Company his ice business and privileges in * * * Lynn, at Flax Pond, with the use and benefit of his ice-houses, * * * for the term ending December 15, 1898.' The extension of this instrument here in question was dated January 27, 1902; the term was extended to December 15, 1902; and it is found by the presiding judge that 'after the agreement of January 27, 1902, was executed, the defendant corporation, by its servants and agents, took possession of the icehouses and machinery, and began to cut ice and filled the icehouses.' There is nothing in the defendant's contention that these icehouses are personal property. It is true that they are of such a construction that, had they been put up by some other than the owner, under an agreement to that effect, they would have been personalty. See Antoni v. Belknap, 102 Mass. 193; Handforth v. Jackson, 150 Mass. 149, 22 N.E. 634. But being put on the land by the owner of it in fee, they became a part of the realty. The question whether an agreement as to the use of real estate is a lease of it, or is a contract by which the owner enters into an agreement to give to the other party to the contract the use of it as a licensee under him, generally has arisen, in this commonwealth, in case of contracts as to the use of specified rooms which are part of a building; that is to say, the question in those cases has been whether the other party to the contract was a lodger or a tenant. The question there, and in the case now before us, is decided by determining whether, as matter of construction, the contract gave the other party exclusive possession of the premises against the world, including the owner, or gave him a license to occupy under the owner, in which case the rights of the other party rest in contract. See, on the one hand, Swain v. Misner, 8 Gray, 182, 69 Am. Dec. 244; Young v. Boston, 104 Mass. 95; Porter v. Merrill, 124 Mass. 534; Fiske v. Framingham Manuf. Co., 14 Pick. 91; and, on the other hand, White v. Maynard, 111 Mass. 250, 15 Am. Rep. 28; Central Mills v. Hart, 124 Mass. 123; Hamblett v. Bennett, 6 Allen, 140. The character of the instrument in the case at bar would hardly have been questioned had the thing let been the icehouses, in place of 'the use and benefit' of them. And although the word 'use' is ordinarily employed when the owner contracts to give another person under him a right to occupy as a licensee, yet the words here are not 'the use of,' but 'the use and benefit of,' the icehouses, and the defendant took exclusive possession of them under the lease. The words 'use and benefit' are words of wide application, and mean the entire beneficial interest in the property in question. See Smith v. Harrington, 4 Allen, 566; Paine v. Forsaith, 86 Me. 357, 30 A. 11; Lawe v. Hyde, 39 Wis. 345; Heaston v. Board of Com'rs, 20 Ind. 398, 403. It is conceded in the case at bar, for example, that the plaintiff took a life interest at least in the real estate of her husband under a devise to...