Shannon v. Jacobson

• Decision Date: 02 March 1928
• Citation: 262 Mass. 463,160 N.E. 245
• Parties: SHANNON v. JACOBSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 463

160 N.E. 245

SHANNON

v.JACOBSON.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1928.

Exceptions from Superior Court, Suffolk County; James H. Sisk, Judge.

Action of summary process by Robert W. Shannon against Gabriel Jacobson. Findings and conclusions for plaintiff, and defendant brings exceptions. Exceptions sustained

Bernard Beerman, of Boston, for plaintiff.

A. S. Allen, of Boston, for defendant.

RUGG, C. J.

This is an action of summary process, wherein the plaintiff seeks to recover possession of a store. The case was tried in the superior court without a jury. ‘Findings of Fact and Rulings of Law’ by the trial judge are incorporated in the bill of exceptions and thus are a part of the record. Davis v. Boston Elevated Railway, 235 Mass. 482, 495, 126 N. E. 841;Samuel v. Page-Storms Drop Forge Co., 243 Mass. 133, 135, 137 N. E. 169.

[2] These findings of fact must be accepted as true. No evidence is reported. Norton v. Musterole Co., Inc., 235 Mass. 587, 589, 127 N. E. 431;Moss v. Old Colony Trust Co., 246 Mass. 139, 143, 140 N. E. 803.

The material facts are that the plaintiff, as the owner of the store, executed a lease thereof to the defendant ‘for three years from Jan. 15, 1923, with an option of renewal of said lease for five years more after the expiration of this lease, at the same rental. * * *’ The option was exercised. Both parties thereupon signed and sealed an indorsement on the lease of this tenor:

‘The lessee having exercised the option of renewal, the above lease is extended to January 15, 1931, under the terms and conditions therein stated.’

No new lease was given and no other instrument executed.

Plainly the clause quoted from the lease was an option for renewal. The meaning of that word in leases is settled under our decisions. Concerning it in Cunningham v. Pattee, 99 Mass. 248, at 252, occurs this:

‘The word, ex vi termini, imports the giving a new lease like the old one, with the same terms and stipulations; at the same rent and with all the essential covenants.’

This statement has often been quoted and generally recognized as sound in law. Leavitt v. Maykel, 203 Mass. 506, 509, 89 N. E. 1056,133 Am. St. Rep. 323;Albiani v. Evening Traveler Co., 220 Mass. 20, 25, 107 N. E. 406;Gardella v. Greenburg, 242 Mass. 405, 407, 136 N. E. 106, 26 A. L. R. 1411;Hanna v. County of Hampden, 250 Mass. 107, 109, 145 N. E. 258;Wit v. Commercial Hotel Co., 253 Mass. 564, 570, 149 N. E. 609;Judkins v. Charette, 255 Mass. 76, 80, 151 N. E. 81, 45 A. L. R. 1;Melrose Operating Co. v. Porter, 256 Mass. 138, 140, 152 N. E. 317. The intimation to the contraryin Donovan Motor Car Co. v. Niles, 246 Mass. 106, at 107, 140 N. E. 304, was quite unnecessary to the decision and must be regarded as an inadvertence. On the other hand, an option for the extension of a lease does not require or contemplate the execution of a new lease, but the continuance of the original lease for a further term upon compliance with the conditions for the exercise of the option. Stone v. St. Louis Stamping Co., 155 Mass. 267, 270, 29 N. E. 623;Kramer v. Cook, 7 Gray, 550, 552;Bradford v. Patten, 108 Mass. 153;Dix v. Atkins, 130 Mass. 171;Kimball v. Cross, 136 Mass. 300;De Friest v. Bradley, 192 Mass. 346, 78 N. E. 467;Hildreth v. Adams, 229 Mass. 581, 118 N. E. 876;Carlisle v. Weiscopf, 237 Mass. 183, 184, 129 N. E. 375. Thus the distinction between an option for a renewal, which contemplates a new lease, and an option for an extension, which contemplates no new lease but a simple prolongation of the original lease for a further term, is firmly established.

The language of the lease in the case at bar indubitably constituted an option of renewal. The parties to the lease might waive the strict terms of their contract. The indorsement on the original lease, while it recites exercise by the lessee of the option of renewal, is not a new lease. In terms it states that ‘the above lease is extended.’ This is an accurate description of the effect of the agreement. It was in substance an extension of the original lease and not a new lease. The leasehold estate created by the lease was prolonged by the agreement indorsed thereon, but no new leasehold came into being. In Wood v. Edison Electric Illuminating Co., 184 Mass. 523, 69 N. E. 364, by the original lease the lessee had ‘the option and right of an additional and further term’ upon condition of giving specified notice and executing ‘a written lease of like tenor’ with further stipulations. No new lease was executed, but the parties signed on the back of the lease an agreement that the ‘term of the within lease is hereby extended’ for a stated time with some modifications. It was said at page 527 (69 N. E. 365) that a finding was warranted that ‘the written extension of the term was given and received * * * as and for the additional lease of like tenor, mentioned in the original lease. The original lease was treated as subsisting with certain modifications.’ That is precisely what took place in the case at bar. The parties waived the execution of a new lease and in place thereof simply extended the original lease. Recognition of the right of parties to make an extension when the lease called for a renewal is found in the careful statement by Chief Justice Knowlton in Leavitt v. Maykel, 203 Mass. at 509, 89 N. E. 1057,133 Am. St. Rep. 323:

‘Under the language used in the present lease, it was necessary that there should be, either the making of a new lease for the additional term, or a formal extension of the existing lease, or something equivalent thereto, in order to bind both parties for a period of two years more.’

See, also, De Friest v. Bradley, 192 Mass. 346, 78 N. E. 467.

The rights of the parties must be adjusted on the basis of an extension and not a renewal of the lease. That is to say, their rights depend upon the continuance of the old lease and not upon the existence of a new lease.

The lease contained this:

‘And provided also, that these presents are upon condition that * * * if the said lessee shall be declared bankrupt * * * according to law * * * then * * * the lessor or those having an estate in the said premises, lawfully may, immediately or at any time thereafter, and while such neglect or default continues, and without further notice or demand, enter into and upon the said premises or any part thereof in the name of...