Welch v. Gordon

• Decision Date: 29 November 1933
• Parties: WELCH et al. v. GORDON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 485

188 N.E. 239

WELCH et al.

v.GORDON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 29, 1933.

Appeal from Municipal Court of Boston, Appellate Division; John Duff, Judge.

Action of contract in the Municipal Court of the city of Boston by E. Sohier Welch and another, trustees, against Ellis Gordon and others. There was a finding for defendants and the case was reported, and from an order of the Appellate Division dismissing the report, plaintiffs appeal.

Affirmed.

R. G. Wellings, of Boston, for appellants.

L. B. Newman, of Dedham, for appellees.

LUMMUS, Justice.

The defendants, lessees under a written lease from the plaintiffs, exercised their option, before the expiration of the term limited, to ‘surrender and deliver up possession of’ the demised premises on January 1, 1932, at which time they had paid to the plaintiffs three fourths of the annual tax upon the premises assessed as of April 1, 1931, leaving unpaid one fourth thereof, or $748.05, which was proportionate to the period from January 1, 1932, to the next assessment day on April 1, 1932. The plaintiffs bring this action of contract to recover the unpaid balance. The lease was drawn upon a partly printed blank, and contained in print, following the habendum, a covenant on the part of the lessees ‘during the said term’ to pay the rent ‘and also all taxes and assessments whatsoever, which may be assessed on the land and the buildings thereon or any part thereof, except assessments for betterments.’ Although the tax was for the twelve months following April 1, 1931 (J. L. Hammett Co. v. Alfred Peats Co., 217 Mass. 520, 105 N. E. 370, L. R. A. 1915A, 334), and was payable on October 1, 1931 (see G. L. [Ter. Ed.] c. 59, § 57), in contemplation of law it was assessed on April 1, 1931, G. L. (Ter. Ed.) c. 59, §§ 11, 21. If the provision already quoted stood alone, reported decisions of this court would give ground for the contention that the lessees are bound to pay the entire tax of April 1, 1931, although their lease was terminated before the end of the twelve months for which the tax was assessed. Wood v. Bogle, 115 Mass. 30;Paul v. Chickering, 117 Mass. 265;Sargent v. Pray, 117 Mass. 267;Carnes v. Hersey, 117 Mass. 269;Welch v. Phillips, 224 Mass. 267, 112 N. E. 651;Baker v. Horan, 227 Mass. 415, 116 N. E. 808. Compare Security System Co. v. S. S. Pierce Co., 258 Mass. 4, 154 N. E. 190.

But that provision does not stand alone. In an earlier part of the lease, after the demising clause, where a blank space gave opportunity for the insertion of typewritten matter, the following appears in typewriting:

‘It is further understood and agreed that the taxes and assessments hereinafter named as to be paid under this lease by the lessees shall be paid to the Lessors in monthly payments as nearly equal as may be estimated on the first day of each month with the rent hereinafter reserved with an annual settlement to be made ten days after the receipt of the tax bill from the City of Boston, in each year, when any amount then due in excess of what has been paid in previous monthly payments shall be paid to the Lessors, and any amount...