Rome v. Johnson

Decision Date12 February 1931
Citation274 Mass. 444
PartiesNATHAN ROME v. HERMAN T. JOHNSON. SAME v. SAME.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

January 13, 14 1931.

Present: RUGG, C.

J., CROSBY, PIERCE CARROLL, & SANDERSON, JJ.

Landlord and Tenant, Eviction, Heat. Contract, Consideration. Evidence Relevancy. Practice, Civil, Exceptions.

An act or omission of a permanent character by a landlord, or by his consent with the intention and effect of depriving his tenant of the enjoyment of premises demised, or of any part thereof, of which the tenant then abandons possession, may be treated as an eviction. Per

CROSBY, J. At the trial together of actions of contract for rent under two leases of adjoining portions of the top floor of a building in Boston, it appeared that the second lease was made about two months after the first and that thereupon the lessee, a manufacturer, with the permission of the lessor removed a partition wall between the premises described in the first and those described in the second lease and occupied the combined premises for the conduct of his business in which about thirty-five girls were employed. The premises were heated by steam in coils of pipe going around the room. The first lease contained a provision that the rent should "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." The second lease did not contain any provision relating to the furnishing of heat. There was evidence that during a certain winter in the term, especially before 10:30 A.M. and after 4

P.M., the girls had to wear sweaters, coats and overshoes to keep warm; that because of the extreme cold the oil used in machines retarded their operation; that at times on account of the cold the girls had to stand around and could not do their work; that the steam pipes were cold; that the defendant at various times during January,

February, and March in that winter complained of lack of heat to the plaintiff and his agents; that, when the defendant paid his rent for

January, it was agreed "that the defendant was to get heat and that if the defendant didn't get the heat promised he would have to vacate"; that heat was not given, and that on April 28 the defendant wrote the plaintiff enclosing a check for the May rent and notifying him that he would vacate the premises on May 31, which he did, and that heat was required at least until April 28. The jury, in answer to a special question, found that the defendant was evicted by the plaintiff, and found for the defendant. Held, that

(1) A finding was warranted that the payment of the January rent in the circumstances was consideration for the oral agreement of the plaintiff to furnish reasonable heat for the premises included in both leases if the defendant would not remove;

(2) Findings were warranted that such heat was not furnished, and that in the circumstances failure to do so amounted to a constructive eviction of the defendant;

(3) On all the evidence it could not have been ruled as matter of law that the defendant delayed an unreasonable time in vacating the premises after breach of the lease of the plaintiff and of the subsequent oral agreement as to heat.

Where a landlord fails to furnish heat as required by a lease or by a subsequent oral agreement, the tenant is not required to vacate the premises immediately, but is entitled to a reasonable time to do so after such breach; what constitutes a reasonable time is generally a question of fact, depending upon the circumstances of each case.

Exceptions to the refusal to permit witnesses at the trial above described to be asked whether any other tenant had complained about a failure to heat the premises were overruled, both because the questions were irrelevant and because the record did not disclose what the answers to the questions would have been.

SIX ACTIONS OF CONTRACT for rent under two leases. Writs in the Municipal Court of the City of Boston, the first and second dated July 14, 1928, the third and fourth dated August 4, 1928, and the fifth and sixth dated September 7, 1928.

Upon removal to the Superior Court, the actions were tried together before Weed, J. Material evidence and special findings by the jury are described in the opinion. The judge denied motions by the plaintiff that verdicts be ordered in his favor. There was a verdict for the defendant in each action. The plaintiff alleged exceptions.

M. Israel, for the plaintiff. H.L. Barrett, (W.F. Levis with him,) for the defendant.

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 defence 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.

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...

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