Stone v. Sullivan

• Decision Date: 03 June 1938
• Citation: 15 N.E.2d 476,300 Mass. 450
• Parties: SOPHIA STONE, administratrix, v. WILLIAM SULLIVAN. SAME v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 450

15 N.E.2d 476

SOPHIA STONE, administratrix, v. WILLIAM SULLIVAN. SAME v. SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

June 3, 1938

November 12, 1936.

Present: RUGG, C.

J., FIELD, DONAHUE & QUA, JJ.

Landlord and Tenant, Eviction, Repairs, Construction of lease.

Covenants in a lease of a building, one by the lessee to pay rent and the other reading, "Outside repairs . . . to be made by lessor -- ten days written notice of any leak in roof to be given by lessee to lessor," were independent in the absence of a clear indication to the contrary; and the lessee had no right to refuse to pay rent because of the lessor's failure to repair unless such failure at least amounted to a constructive eviction.

An essential element of a constructive eviction of a lessee by a lessor of real estate is that abandonment of possession by the lessee follow within a reasonable time the conduct of the lessor of which he complained.

A finding of constructive eviction of a lessee of a building by the lessor by reason of a breach by the lessor of a covenant to make repairs on notice was not warranted where it appeared that the lessee continued in occupation without paying rent for nearly a year after such breach.

THREE ACTIONS OF CONTRACT. Writs in the First District Court of Eastern Middlesex dated December 20, 1928, May 2, 1929, and October 16, 1935.

The defendant appealed from a reversal by the Appellate Division for the Northern District of findings by Davis, J.

J. F. Maher, for the defendant, submitted a brief. G. S. Alberts, for the plaintiff.

FIELD, J. These are three actions of contract brought in a district court 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 in 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 Crowninshield v. Broughton, 239 Mass. 17, 18; Cohen v. Longarini, 207 Mass. 556 , 557; Swistak v. Paradis, 288 Mass. 377, 380.

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. Fifty Associates v. Berger Dry Goods Co. Inc. 275 Mass. 509 , 511. Tracy v. Long, 295 Mass. 201 , 203. 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 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...