Stewart v. Putnam

• Decision Date: 18 September 1879
• Citation: 127 Mass. 403
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John G. Stewart, Jr. v. William L. Putnam & another, trustees

127 Mass. 403

John G. Stewart, Jr. v. William L. Putnam & another, trustees

Supreme Court of Massachusetts

September 18, 1879

Argued November 13, 1878 [Syllabus Material]

Suffolk. Tort for personal injuries sustained by the plaintiff by reason of the alleged negligence of the defendants in leaving a coal-hole uncovered in the sidewalk in front of a building on Exchange Place in Boston, whereby the plaintiff fell into the hole and was injured. Trial in this court, before Morton J., who reported the case for the determination of the full court in substance as follows:

It was admitted that Exchange Place, including the sidewalk, was a public highway; that, at the time of the accident, the defendants were seised in fee of the building and the land on which it stood, as trustees under the will of William S Perry, deceased that on January 20, 1872, Perry, who then owned the building, leased it for the term of ten years from that date to Elijah D. Goodrich, the lessee to make all repairs, outside as well as inside, at his own cost, and to have the right to surrender the lease at the end of the first five years of the term, by giving six months notice in writing; and that on October 1, 1876, the defendants and Goodrich made a contract under seal, which was in force when the plaintiff was injured. Annexed to the report was a copy of this contract, signed by one of the trustees and by Goodrich, which, after reciting that Goodrich was entitled to terminate the lease on January 1, 1877, by giving notice thereof, and had given notice, which had been accepted by the trustees, so that the lease would thereby terminate on January 1, 1877, proceeded as follows:

"It is agreed: 1st. Said lease shall terminate and is hereby terminated this day in lieu of said first day of January 1877, with the same effect, except as to time, as though it had terminated on said first day of January.

"2d. Said Goodrich releases and discharges to said trustees all improvements and property put by him upon the leased premises, and all claims whatever against either said trustees or said Perry or his estate arising from or concerning said leased premises.

"3d. Said Goodrich assigns to said trustees all sub-leases of any part of said leased premises, whether verbal or in writing, and herewith delivers the latter to said trustees.

"4th. Said trustees will pay the taxes on leased premises for the current year without cost to said Goodrich and release him from all claims therefor, provided said Goodrich does all the things herein provided, and agreed by him to be done.

"5th. Said Goodrich is made agent for said trustees to lease and collect rents and have general care and charge of said premises for the space of one year and three months from date, and will, at his own expense, furnish porterage, water, steam heat and gas for the same, and make all inside repairs and keep the same in good order, except as hereinafter provided, but is not authorized to contract any liabilities in behalf of said trustees.

"For his services as such agent, until January 1st, 1877, he is to receive no compensation, and he guarantees that said trustees shall receive to and including January 1st, 1877, the same net rent, including interest on betterments and excluding taxes, as though said lease were not terminated until January 1st, 1877, the same to be payable at the same time as provided in said lease.

"From January 1st, 1877, to January 1st, 1878, said trustees are to receive the gross rents of said premises, and for services and expenses of said Goodrich during said period, said Goodrich shall be paid as follows: Ten per cent of the rents actually collected, being for his services, and six hundred dollars, being in full for expense of water, gas, steam heat, porterage and inside repairs. Said six hundred dollars shall be paid in monthly cash installments, but said percentage may be withheld by said trustees till all sums now or hereafter due from said Goodrich to said trustees are paid.

"It is understood that said Goodrich is not bound to repair damages caused by fire, extraordinary casualty, defective construction of the building, or by want of outside repairs, nor to furnish gas or janitor within any rooms or offices leased."

It was in evidence, for the plaintiff, that on November 23, 1876, at the time the injuries were received, Goodrich, under this contract, had the general care and control of the building including the cellar under the building and under the sidewalk, and of the coal-hole, and that no other person had any occupancy, care or control of the...