Viaux v. John T. Scully Found. Co.
| Decision Date | 07 January 1924 |
| Citation | 142 N.E. 81,247 Mass. 296 |
| Parties | VIAUX v. JOHN T. SCULLY FOUNDATION CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; J. F. Quinn, Judge.
Action of contract by Frederic H. Viaux against the John T. Scully Foundation Company to recover under first count for rent and under third count damages arising out of occupation of premises. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.E. K. Arnold and A. B. Carey, both of Boston, for plaintiff.
J. H. Hurley and W. J. Drew, both of Boston, for defendant.
This is an action of contract, to recover under the first count of the declaration for rent of premises in the city of Cambridge, alleged to have been leased to the defendant, and under the third count for damages claimed to have arisen from the occupation of the premises so leased. The second count was waived. The trial judge directed a verdict for the plaintiff on the first count; the third was submitted to the jury, which returned a verdict for the plaintiff.
The rights and obligations of the parties arise from two letters. The first, dated May 1, 1917, is from the plaintiff to the defendant, and so far as pertinent to the issues involved is as follows:
By letter dated May 5, 1917, the defendant answered:
‘Replying to your letter of the 1st inst. would say that we accept the terms of the same for rental of your wharf.’
The record shows that the defendant had occupied the wharf under a similar agreement for the four months next prior to May 1, 1917, and continued to occupy it until May 11, 1917, for the storage of sand and gravel; on that date a portion of the front wall of the wharf gave way and bulged outward, causing the damage for which the plaintiff seeks under the third count to recover by virtue of the agreement. The defendant's exceptions relate to the admission and exclusion of evidence, to the refusal of the court to give certain rulings, and to certain parts of the charge.
[1] The letter from the plaintiff to the defendant and the reply of the latter purport to be a contract under which the premises are to be occupied; the rights and relations of the parties are defined in the letters, which contain apt words to operate as a present demise, and are to be so construed; accordingly the exception to the ruling that the letter and acceptance constitute a lease cannot be sustained. McGrath v. Boston, 103 Mass. 369;Shaw v. Farnsworth, 108 Mass. 357;Duncklee v. Webber, 151 Mass. 408, 24 N. E. 1082.
It is the contention of the plaintiff that, owing to the depositing by the defendant of large quantities of sand and gravel on the wharf, the retaining wall was pushed outward, causing the injury complained of, and that the damage arose out of the occupation of the premises within the meaning of the terms of the agreement.
The defendant contends that owing to dredging in connection with the construction of the Charles River Basin, the action of the currents of the stream, the condition of the piles, the age of the wharf, the percolation of waters into and under it, and other causes independent of occupation by the defendant, the wall fell. The question whether the fall of the wall was due wholly or in part to acts of the defendant in depositing sand or gravel on the wharf, or was wholly the result of other causes over which the defendant had no control, was submitted to the jury under full and appropriate instructions. The court ruled that the presence of sand and gravel need not have been the sole cause of the damage, but that if the weight of the material caused it wholly or in part that the defendant would be liable.
[2] The defendant's request for a ruling that the defendant would not be so liable, unless the presence of the sand and gravel was the predominating cause of damage, could not properly have been given. It was enough to establish liability to show that the acts of the defendant were a concurring cause to the fall of the wall, and the judge so instructed the jury. The contract governs and the rights of the parties are to be determined thereby. As was said in Travelers' Insurance Co. v. Melick, 65 Fed. 178, at page 184, 12 C. C. A. 544, at page 551 (27 L. R. A. 629):
See Lothrop v. Thayer, 138 Mass. 466, 475,52 Am. Rep. 286.
[3] The rights of the plaintiff and the obligations of the defendant arise under a contract, and do not involve negligence of the defendant, or good or bad faith on its part. The contract is to be construed in accordance with the natural and usual meaning of the language used. If the weight of the material placed upon the wharf was a concurring cause to the fall of the wall, it is clear that there was a causal connection between the act of the defendant and the pushing out of the wall. McNicol's Case, 215 Mass. 497, 102 N. E. 697,46 L. R. A. (N. S.) 547. It cannot properly be held that the defendant would be exempt from liability unless the sole or predominant cause of the fall of the wharf was due to the occupation of the defendant; so to hold would be contrary to the language of the contract.
[4] There was no warranty as to the condition of the wharf or that it was fit for the...
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...it is observed that the contract was drafted by Schwerman's resident counsel. Schwerman's reliance upon Viaux v. John T. Scully Foundation Co., 247 Mass. 296, 142 N.E. 81 (1924) is misplaced, for the case is III. Schwerman strongly argues that the District Court erred in its Finding of Fact......
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