Stone v. Sullivan

Decision Date03 June 1938
Citation300 Mass. 450,15 N.E.2d 476
PartiesSTONE v. SULLIVAN (three cases).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Three actions of contract by Ephraim Stone against William Sullivan to recover rent under a lease, which actions were subsequently prosecuted by Sophia Stone, administratrix of the estate of Ephraim Stone, deceased, wherein the plaintiff obtained a consolidated report of the three cases to the Appellate Division which, in each case, ordered the finding vacated and judgment entered for plaintiff, and the defendant appeals.

Affirmed.Appeal from Appellate Division of District Court, Northern District; Davis, Judge.

G. S. Alberts, of Boston, for appellee.

Jas. F. Maher, of Malden, for appellant.

FIELD, Justice.

These are three actions of contract brought in a district by Ephraim Stone, and now prosecuted by the administratrix of his estate, to recover rent under a written lease. A lease was introduced in evidence. It was dated October 7, 1926, named Ephraim Stone as lessor and William Sullivan, ‘doing business under the style and name of The Flower Shoppe,’ as lessee, and was signed by both Ephraim Stone and William Sullivan. This lease recited ‘That is consideration of the rent and covenants herein reserved and contained on the part of the lessee to be paid, performed and observed, the Lessor do hereby demise and lease unto the Lessee the stores numbered 299-301 Pleasant St., Malden with basements there under. To conduct a florist business.’ ‘To Have and to Hold the premises hereby demised unto the Lessee’ for a term of three years from November 1, 1926, reserving an annual rent payable in advance in monthly payments of $110 each during the first year of the term and $115 each during the other two years.

The first case is brought to recover rent for the months of October, November and December, 1928, the second case, rent for five months, beginning January, 1929, and the third case, rent for five months, beginning June, 1929. The answer in each case was general denial and payment and, also, in the third case-commenced by writ dated October 16, 1935-the statute of limitations. In each case four requests by the plaintiff for rulings were denied and one such request was granted, and in the third case two additional requests based on the statute of limitations were granted. The trial judge made no special findings. In the first case there was a finding for the plaintiff in the sum of $156.20-which included interest-and in each of the other cases a finding for the defendant. The plaintiff obtained a consolidated report of the three cases to the Appellate Division which, in each case, ordered the finding vacated and judgment entered for the plaintiff in the full amount of the rent sought to be recovered therein with interest from the date of the writ. The defendant appealed to this court. We interpret the words in the record, ‘The evidence was substantially as follows,’ introducing the recital of evidence-particularly in view of the concessions of the parties and of the absence of any argument to the contrary-as meaning that the report contains the substance of all the evidence material to the questions of law reported. See Crowinshield v. Broughton, 239 Mass. 17, 18, 131 N.E. 572;Cohen v. Longarini, 207 Mass. 556, 557, 93 N.E. 702;Swistak v. Paradis, 288 Mass. 377, 380, 192 N.E. 920.

It is undisputed that the defendant occupied the premises under the lease until about October 30, 1928, and paid the rent called for by the lease up to and including the month of September, 1928. The defendant now makes no contention that he is not liable for the rent for October, 1928. He contends, however, that he is not liable for rent thereafter. No question relating to the statute of limitations is brought before us by the report. The plaintiff is entitled as matter of law to recover the rent reserved under the lease-which was in evidence-unless by reason of some affirmative defence the defendant was relieved from liability therefor. Gaston v. Gordon, 208 Mass. 265, 270, 94 N.E. 307;Fifty Associates v. Berger Dry Goods Co., Inc., 275 Mass. 509, 511, 176 N.E. 643;Tracy v. Long, Mass., 3 N.E.2d 789. The only affirmative defence upon which the defendant relies is that by reason of the failure or refusal of the lessor to make repairs, the defendant was entitled to quit the premises and to refuse to pay the rent on the ground that such failure or refusal of the lessor to make repairs constituted a constructive eviction. This defence is not established by the evidence.

The lease provided that the lessee covenanted with the lessor that the lessee ‘will pay unto the Lessor the said rent at the times, and in the manner aforesaid (except as hereinafter provided), and will keep all and singular the said premises in such repair, order and condition as the same are in at the commencement of said term, or may be put in during the continuance thereof, damage by fire or other unavoidable casualty only excepted (Outside repairs, however, to be made by lessor-ten days written notice of any leak in the roof to be given by lessee to lessor. [)] * * * and will peaceably yield up to the lessor the said premises, and all erections and additions made to or upon the same, in good repair, order and condition in all respects, damage by fire or other unavoidable casualty excepted * * * and no addition or alteration to or upon the said premises shall be made without the consent in writing of the Lessor; and the Lessor or his agents may during the said term * * * enter to view the said premises [and for other purposes] and * * * make repairs and alterations if he should elect so to do.’

The following evidence is reported: ‘In November, 1927, water would leak through the top of the front windows and seep through the ceiling of the demised premises wetting a strip running along the front of said ceiling and at times causing bits of calcimine to fall on plants thereunder. On or about November 7, 1927, the following letter was sent to the lessor:-Nov. 7, 1927 Mr. E. Stone 53 State St. Boston, Mass. Dear Sir: According to the terms of our lease for the premises located at 299 Pleasant Street, Malden, we hereby give you notice that the roof over the window in the front of this store is leaking and we ask you to make the necessary repairs. Awaiting your action on this matter, we are Very truly yours, (Signed) The Flower Shoppe WAS/CMC’ The Lessor sent out two repair men who made repairs on the same. About two months thereafter a large spot on the ceiling over the window in front of the store became wet and bits of calcimine dropped therefrom. The defendant from time to time spoke to the Lessor of said condition and orally requested that the same be repaired. On October 3, 1928, the following letter was sent to the Lessor by the defendant's attorney:-Oct. 3, 1928 Mr. E. Stone 53 State St. Boston, Mass. Dear Sir: Pleas take notice that Mr. William Sullivan lessee of property described in letter from you as 299-301 Pleasant Street hereby gives notice that he will quit said premises on the last day of this month and that the lease is hereby...

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16 cases
  • Boston Housing Authority v. Hemingway
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 5 Marzo 1973
    ... ... Cook, 7 Gray 550; Leavitt v. Fletcher, 10 Allen 119; Ware v. Hobbs, 222 Mass. 327, 110 N.E. 963; Stone v. Sullivan, 300 Mass. 450, 15 N.E.2d 476 ...         These cases were predicated on the old common law [363 Mass. 189] assumption that a ... ...
  • Wesson v. Leone Enterprises, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 9 Septiembre 2002
    ... ... landlord, to maintain the roof and therefore the tenant cannot claim constructive eviction due to the landlord's failure to make repairs, see Stone v. Sullivan, 300 Mass. 450, 454-455, 15 N.E.2d 476 (1938) n14; and second, that even if the lease required the landlord to maintain the roof, his ... ...
  • Buker v. National Management Corp.
    • United States
    • Appeals Court of Massachusetts
    • 1 Julio 1983
    ... ... Because the plaintiffs had the obligation to make repairs, no act or failure to act of the defendant caused them to yield the premises. See Stone v. Sullivan, 300 Mass. 450, 455, 15 N.E.2d 476 (1938) ...         Having rejected each of the plaintiffs' various contentions, we conclude ... ...
  • Ryan v. Boston Hous. Auth.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 28 Enero 1948
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