Rogers v. Snow

• Decision Date: 25 June 1875
• Citation: 118 Mass. 118
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Alvan Rogers & others v. David Snow

118 Mass. 118

Alvan Rogers & others v. David Snow

Supreme Court of Massachusetts

June 25, 1875

[Syllabus Material] [Syllabus Material] [Syllabus Material]

Suffolk. Tort by the firm of Rogers & Co. for forcibly entering their store and expelling the plaintiffs therefrom by leasing the store to certain tenants. The declaration also contained a count in contract, which alleged that on or about August 4, 1866, the defendant executed to the plaintiffs a lease of certain premises in Boston for a term of ten years from January 1, 1867; that under the lease they occupied the premises paying the rent reserved in the lease; that on or about November 9, 1872, the store thereon was totally destroyed by fire; that the defendant rebuilt the store, which was ready for occupancy June 1, 1873, but prevented the plaintiffs from entering and occupying it, as they wished and attempted to do, for the unexpired portion of their term, and leased it to other tenants to whom he gave possession; and that the plaintiffs demanded possession of the store of the defendant and the said tenants, which was refused, whereby the defendant's covenant for quiet enjoyment in the said lease was broken.

By the lease, a copy of which was annexed, the defendant let, for a specified rent, to the plaintiffs "a store now being erected by me on Federal Street and Sullivan Place, Boston." The lessees covenanted to pay rent on certain days mentioned "except only in case of fire or other casualty;" and also all taxes "in respect of the said premises." The lease also contained the following clauses:

"Provided always that in case the premises or any part thereof shall, during said term, be destroyed or damaged by fire or other unavoidable casualty, so that the same shall be thereby rendered unfit for use and habitation, then, and in such case, the rent hereinbefore reserved, or a just and proportionate part thereof, according to the nature and extent of the injury sustained, shall be suspended or abated, until the said premises shall have been put in proper condition for use and habitation by the said lessor.

"And provided also that these presents are upon condition, that if the said lessees or their representatives or assigns do or shall neglect or fail to perform and observe any or either of the covenants contained in this instrument, which on their part are to be performed, or if the said lessees shall be declared bankrupt or insolvent according to law, or if any assignment shall be made of their property for the benefit of creditors, then, and in either of the said cases the lessor, or those having his estate in the said premises, lawfully may, immediately or at any time thereafter, and whilst such neglect and default continues, and without further notice or demand, enter into and upon the said premises or any part thereof in the name of the whole, and repossess the same as of his former estate, and expel the said lessees and those claiming under them, and remove their effects, (forcibly if necessary,) without being taken or deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant, and that upon entry as aforesaid the said term shall cease and be ended.

"And the said lessor covenants and agrees with the said lessees and their representatives, that they paying the rent aforesaid, and performing the covenants herein contained, on their part to be paid and performed, shall peaceably hold and enjoy the said rented premises, without hindrance or interruption by the said lessor or any person or persons whomsoever."

Trial in the Superior Court before Aldrich, J., who allowed a bill of exceptions in substance as follows:

The store leased, which covered all or nearly all the land described in the lease, was totally destroyed by the great fire of November 9, 1872, and without the fault of either party. At the time of the fire the rent had been paid according to the terms of the lease to October 1, 1872, that being the last rent day before the fire. The taxes for the year 1872 had been paid by the plaintiffs before the fire. The defendant introduced evidence tending to show that on and before January 1, 1873, and several times between that day and January 21, 1873, he demanded the rent he contended was due January 1, 1873, of the plaintiffs, who refused to pay the same unless the defendant would make a deduction from the rent claimed, of a fair proportion of the taxes which they had paid, from the time of the fire, for the tax year beginning May 1, 1872, and terminating May 1, 1873. The defendant's evidence also tended to show that there was no extension of the time of the payment of the rent, nor any waiver of the rights of the defendant resulting from the nonpayment thereof; and that when the defendant demanded the rent he told the plaintiffs that they forfeited all their rights under the lease, if they had any, by refusing to pay the rent when payable according to the terms of the lease, and denied that he was bound to refund or make any deduction on account of the payment of taxes by the plaintiffs.

The evidence of the defendant further tended to show that on January 21, 1873, the rent was settled by the parties, and that the defendant made a discount of about $ 240, which was to be a full settlement of the rent and taxes, and that the plaintiffs then surrendered all rights, if they had any, under the lease. Upon all these points, except as to the deduction of the $ 240, the plaintiffs introduced evidence contradicting that of the defendant, and evidence tending to show they had never forfeited their rights under the lease, and that the lease had never been cancelled or surrendered.

Upon all these disputed points to which this conflicting testimony related, the judge instructed the jury that if they should find upon the evidence that the defendant did demand the rent due January 1, 1873, and that the plaintiffs refused and neglected to pay the rent, that would amount to a breach of the covenant for the payment of rent, and would authorize the defendant, as lessor, to reenter and take possession of the premises and terminate the lease and all rights of the plaintiffs thereunder; but that the mere...