Rome v. Johnson

• Decision Date: 12 February 1931
• Citation: 174 N.E. 716,274 Mass. 444
• Parties: ROME v. JOHNSON et al. (six cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 444

174 N.E. 716

ROME

v.JOHNSON et al. (six cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 12, 1931.

Exceptions from Superior Court, Suffolk County; A. R. Weed, Judge.

Actions by Nathan Rome against Herman T. Johnson and trustee. Verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled.

M. Israel, of Boston, for plaintiff.

H. L. Barrett and W. F. Levis, both of Boston, for defendants.

CROSBY, J.

These are six actions of contract to recover rent under two written leases of adjoining portions of the top floor of a building, in Boston. One of the leases, hereafter referred to as the first lease, is dated November 17, 1926, and the other, hereafter referred to as the second lease, is dated January 20, 1927. The amended answers plead, among other things, that the leased premises were surrendered by the defendant, thereby extinguishing any liability of the defendant to pay rent. The answers further plead that the defendant was evicted from the premises by the failure of the plaintiff to furnish satisfactory, and a proper amount of, heat, by reason of which the defendant properly was authorized to terminate his liability under both leases, and that because of such failure they were thereby terminated. The cases were originally brought in the Municipal Court of the City of Boston, and were afterwards removed to the Superior Court where they were tried together before a judge and a jury. Two special questions were submitted to the jury as follows: ‘1. Was the defendant evicted by the plaintiff from the leased premises? 2. Were the leased premises surrendered by the defendant and such surrender accepted by the plaintiff?’ Both of these questions were answered by the jury in the affirmative, and a verdict was returned for the defendant in each case. The cases are before us on exceptions to the denial of written motions for directed verdicts in favor of the plaintiff, and to the denial of motions for a new trial. The plaintiff also excepted to the exclusion of certain evidence.

It is agreed ‘that in making out his defense of ‘constructive eviction’ the defendant relied entirely on the evidence relating to heat, and * * * that in making out his defense of surrender and acceptance of possession the defendant relied entirely on the evidence of turning over the keys to the janitor of the building of which the premises demised' by the leases above referred to form a part. The first lease contains the following provision: ‘It is understood and agreed the hereinbefore named rent shall include the use of steam to heat the herein demised premises, as now piped, during the usual business hours of the usual business days of the heating season of the term of this lease, subject, however, to interruption on account of accidents, repairs, strikes, etc., or causes beyond the control of the Lessor.’ The second lease covered the remainder of the top floor which was not included in the first lease. It did not contain any provision relating to the furnishing of heat. When the first lease was executed there was a partition wall which separated the premises demised by that lease from those covered by the second lease. When the latter was executed the partition wall was removed by the lessee with the permission of the lessor, and the lessee occupied the premises described in both leases for the conduct of his business. Steam for heating the entire building was purchased by the plaintiff from the owner of the heating plant of a building across the street. The premises described in both leases were equipped with a series of coil pipes which ran around the walls of the entire floor and could be used for heating the space covered by both leases. Heat could have been used in the premises described in the second lease by turning a valve. The premises were occupied by the defendant largely for the manufacture of ladies' underwear, and about thirty-five girls were so employed. There was evidence tending to show that during the winter of 1927-1928, especially before 10:30 a. m. and after 4 p. m., the girls had to wear sweaters, coats and overshoes to keep warm, and that because of the extreme cold the oil used in the machines slowed up their operation; that at times on account of the cold the girls had to stand around and could not do their work, and that the steam pipes were cold. There was evidence that the defendant at various times during January, February, and March, 1928, complained of lack of heat to the janitor of the building, to the plaintiff's agent, Slovin, who collected the rents and had general charge of this and other property of the plaintiff, and to the plaintiff.

[1] There was ample evidence to warrant the jury in finding that there was a constructive eviction of the defendant under the first lease for failure of the plaintiff properly to heat the premises therein described. There was further evidence introduced by the defendant of a conversation between him and Slovin, on January 17, 1928, at which time it was agreed, in substance, that when the defendant on that day gave his check for the January rent it was the understanding that the defendant would be supplied with heat for the premises covered by both leases, and that if it was not furnished so that his employees could work comfortably and efficiently he would have to vacate the premises. Notwithstanding this conversation, there was evidence tending to show that there was no improvement in the heating conditions, and that on April 28, 1928, the defendant wrote the plaintiff enclosing a check for the May rent and notified him that he would vacate the premises on May 31, 1928. In reply the plaintiff wrote the defendant that he would hold him for the full term of the lease. On May 31, 1928, the defendant vacated the premises and delivered the keys to the plaintiff's janitor. About the middle of July following, the janitor told Slovin that he had the keys and the latter told him to return them to the defendant, which was done; about four days later the defendant brought them back and left them with the janitor.

[3] The demised premises under both leases carried with them an implied covenant of quiet enjoyment as matter of law. The lessee was entitled to the beneficial use of the premises so far as given to him under the leases or under any subsequent oral agreement entered into between the parties with respect to the promise of the lessor to furnish heat for the premises covered by the second lease. Hastings v. Lovejoy, 140 Mass. 261, 2 N. E. 776,54 Am. Rep. 462;King v. Faist, 161 Mass. 449, 456, 37 N. E. 456;Freedman v. Gordon, 220 Mass. 324, 326, 107 N. E. 982;Conroy v. Toomay, 234 Mass. 384, 125 N. E. 568; Id., 255 Mass. 87, 90, 151 N. E. 61;Ashkenazy v. O'Neill, 267 Mass. 143, 166 N. E. 622. We are of opinion that it was a question of fact for the jury to decide upon all the evidence whether such oral agreement was entered into. If, as the jury could have found, the plaintiff agreed that as a condition that the defendant should continue to occupy the premises he should be furnished with a reasonable amount of heat, such agreement constituted a valid consideration for the promises. Conroy v. Toomay, 255 Mass. 87, 90, 151 N. E. 61, and cases cited. The evidence warranted a finding that during the winter months the plaintiff failed properly to heat the premises occupied by the defendant under both leases; that the defendant and his employees suffered from the extreme cold by reason of the failure of the plaintiff to carry out his agreement to furnish heat. The testimony of the defendant, and that of the witness Rosenthal, that the check for rent for the month...