Taylor v. RC Maxwell Co.

• Decision Date: 16 March 1929
• Docket Number: No. 2316-2319.,2316-2319.
• Parties: TAYLOR v. R. C. MAXWELL CO. (two cases). R. C. MAXWELL CO. v. TAYLOR et al. (two cases).
• Court: U.S. Court of Appeals — First Circuit

31 F.2d 711 (1929)

TAYLOR v. R. C. MAXWELL CO. (two cases).

R. C. MAXWELL CO. v. TAYLOR et al. (two cases).

Nos. 2316-2319.

Circuit Court of Appeals, First Circuit.

March 16, 1929.

George S. Taft, of Worcester, Mass., for Taylor and others.

Frederick A. Crafts, of Boston, Mass., for R. C. Maxwell Co.

Before BINGHAM and JOHNSON, Circuit Judges, and MORRIS, District Judge.

JOHNSON, Circuit Judge.

These cases are appeals from judgments of the District Court of the United States for the District of Massachusetts.

Nos. 2316 and 2317 are actions at law to recover from the defendant the agreed price for the right to erect signs for display advertising purposes on the roofs of buildings in the city of Worcester, in the commonwealth of Massachusetts.

Nos. 2318 and 2319 are actions at law by the defendant in the other two actions to recover money which had been paid in accordance with written agreements entered into between the parties. The parties will be designated as they were in the District Court. They were heard by the judge without a jury.

In No. 2316, the plaintiff entered into the following agreement with the defendant:

"Worcester, Mass., December 8, 1920.

"In consideration of the payment of the sum of eight hundred dollars ($800.00) per year, by the R. C. Maxwell Company, of Trenton, N. J., hereinafter called the lessee, I, Forrest W. Taylor, hereinafter called the lessor, hereby grant to the lessee the exclusive right to erect a sign or signs for display advertising purposes on the roof of the building at No. 426-428 Main Street and No. 1-7 Pleasant Street, Worcester, Mass., for a period of five (5) years from the first day of January, 1921. Said sum to be payable in equal monthly payments in advance, of sixty-six and 67/100 dollars ($66.67) each, on the 1st day of each and every month during said term.

"The lessee agrees to keep said roof in good condition and be responsible and pay for any damage to persons or property caused by the erection or maintenance of said sign during the term of this agreement.

"The lessee agrees to comply with all statutes, ordinances or regulations that are now in force or may be enacted during the term of this agreement by state or city governments or any commission or board acting thereunder.

"All signs and sign structures placed on the above-described roof shall always remain the personal property of the lessee, and shall be kept in repair by the said lessee.

"The lessor may terminate this agreement by giving the lessee sixty days notice in writing, provided the building is needed for building purposes or in case the sale of the property is desired."

In No. 2317, the plaintiffs, as executors and trustees of the estate of Ransom F. Taylor, claim to recover from the defendant the amount due under an agreement similar to that described in No. 2316, but containing more explicit details by which they granted the right to erect signs for display advertising purposes on the roof of the building at No. 430-438 Main street, Worcester, Mass., for a term of four years and eight months from and commencing the 1st day of August, 1921, at the rate of $1,200 per year for the first eight months, and at the rate of $1,600 per year for the remaining four years. This last agreement contained also this paragraph:

"And should the said party of the second part be prevented by authorities having jurisdiction from constructing or maintaining its signs, electrically or otherwise, this lease shall terminate at the option of the party of the second part, and the party of the first part agrees to return upon demand, pro rata, any rental paid in advance. However, said party of the second part shall give the said party of the first part 30 days' written notice of its intention to terminate this lease."

In No. 2316, the defendant recovered judgment, and plaintiff appealed.

In No. 2317, the plaintiffs had judgment for $4,966.67 and interest, amounting to $858.49, making a total of $5,825.16, and the defendant appealed.

No signs were erected by the defendant upon the buildings described in either agreement, because it could not secure the permit required by the regulations of the division of highways of the department of public works of the commonwealth of Massachusetts.

In No. 2318, the plaintiff sought to recover from the defendant $800, with interest, being the advance payments made by it under the written agreement of December 8, 1920, and recovered judgment, from which the defendant duly appealed.

In No. 2319, the plaintiff sought to recover the sum of $500 with interest, being the amount paid by it under the agreement described in No. 2317, and the court found for the defendants and the plaintiff appealed.

In 1920 the Legislature of Massachusetts passed an act in relation to outdoor advertising. Chapter 545, Acts of 1920; chapter 93 of the General Laws. Under this act the division of highways was authorized to grant permits and make regulations in regard to such advertising and places where it might be done. The act also provided (section 30) that "no person, firm, association or corporation shall post, erect, display or maintain on * * * private property within public view from any highway, public park or reservation any billboard or other advertising device, * * * which advertises or calls attention to any business, article, substance or any other thing, unless such billboard or device conforms to the rules and regulations and ordinances or by-laws established" under the section conferring authority upon the division of highways to make regulations. Section 33 of the act also provided a penalty for the violation of any "rule, regulation, ordinance or by-law established" by the division of highways.

By regulations promulgated by the division December 30, 1920, to be effective December 31, 1920, it was provided that no outdoor advertising should be permitted within 300 feet of any parkway, playground, state reservation, or public building. Both of the buildings described in the agreements in question are about 200 feet from the Worcester Common, on which the Worcester city hall is located, and directly across a narrow street from each other.

By regulations adopted July 1, 1921, it was provided as follows:

"No permits shall be issued for outdoor advertising on any location within 300 feet of any park, parkway, playground, or reservation, except under the following conditions: * * * permits may be issued for the location of electrical display signs on buildings under such restrictions as the division may require."

Another set of regulations was made January 24, 1924, which was exactly the same in regard to locations of billboards on private property within public view from a park.

The applications of the Maxwell Company for permits to erect signs on the buildings described in the two agreements above set forth were denied December 27, 1921, for the reason that the buildings were within 300 feet of the City Hall Park.

Following this action of the commission the Maxwell Company filed an application January 23, 1922, asking a permit to erect illuminated signs upon the roofs of both buildings, which was denied February 9, 1922. Another application to place an electrical sign on the roof of the building at 430-438 Main street was denied May 9, 1922, by a letter in which the following statement appears:

"The commissioners have considered this location and are of the opinion that no advertising structure should be placed in this vicinity. Therefore they have...