Wolbarsht v. Donnelly

• Decision Date: 11 April 1939
• Citation: 20 N.E.2d 415,302 Mass. 568
• Parties: SARAH E. WOLBARSHT, administratrix, v. MARY J. DONNELLY. SAME v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 568

20 N.E.2d 415

SARAH E. WOLBARSHT, administratrix, v. MARY J. DONNELLY. SAME v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

April 11, 1939

October 3, 1938.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.

License. Contract Condition precedent, Performance and breach.

Landlord and Tenant, Rent. A permit from the Boston building department under St. 1907, c. 550, Section

1, is required for the erection of a roof sign although it does not project over a public way.

The lessor under a lease with the payment of rent conditioned on the granting of a certain permit to the lessee was not entitled to recover rent merely by proving the lessee's failure to apply for the permit, without proof that it would have been granted if application had been made.

Two ACTIONS OF CONTRACT. Writs in the Superior Court dated, respectively January 6, 1932, and April 3, 1934.

There were findings for the plaintiff by Dillon, J., in the sums of $176.77 and $209.90. The defendant alleged exceptions.

A. W. Wunderly, for the defendant. M. Michelson, for the plaintiff.

DOLAN, J. The first of these actions has been previously considered by us. Wolbarsht v. Donnelly, 291 Mass. 229 . The second action is brought to recover amounts alleged to be due under the same "roof lease" and to have accrued since the bringing of the first action. The death of the plaintiff Jacob L. Wolbarsht having been suggested (G.L. [Ter. Ed.] c 228, Section 4), his administratrix appeared and prosecuted the actions. The judge found for the plaintiff in both cases, and they now come before us on the defendant's exceptions to the denial of certain of her requests for rulings.

The terms of the lease in question are described in the earlier opinion before referred to. Its only provision now pertinent is as follows: "It is agreed that the rent is not to be paid until John Donnelly & Sons have been granted permits as required by Commonwealth of Massachusetts and city of Boston. . . . The lessees agree to exercise due diligence to secure said permits." The defendant has never made any application for such a permit to the building department of the city of Boston, and it is upon her inaction in that respect that the plaintiff bases her claim for rent under the lease. The request of the defendant in each case for a ruling that on all the evidence and the pleadings the plaintiff could not recover was denied by the judge, who found and ruled upon all "the evidence submitted . . . that the city of Boston does not require a permit for any structure contemplated to be built under the lease because the roof sign twenty-five feet by twelve feet described in the defendant's application to the board of public works [department of public works of the Commonwealth] dated March 15, 1930 and in the permit issued by said board [department] April 4, 1930 would not project over a public way, and . . . [found and ruled] that a billboard is not a building or a structure for which a permit is required, within the meaning of the building act of the city of Boston Acts of 1907, chapter 550, and acts in amendment thereof."

We are of opinion that this ruling was erroneous. It is settled by the case of Bellevue Hotel Co. v. Building Commissioner of Boston, 299 Mass. 73 , which was decided after the ruling before referred to was made by the judge in the present cases, that a permit of the building department is required for the erection of a nonprojecting sign under the provisions of St. 1907, c. 550, Section 1. (See St. 1938, c. 479, which, if and when accepted by the city council of Boston, will replace St. 1907, c. 550. In Section 106 of St. 1938, c. 479, "structure" is defined as inclusive of "sign.")

There is nothing in the record to show that, had the defendant made application to the building department of the city of Boston for the issuance of the necessary...