Woodbury v. Sparrell Print

• Citation: 198 Mass. 1,84 N.E. 441
• Parties: WOODBURY et al. v. SPARRELL PRINT. SAME v. SPARRELL.
• Decision Date: 29 February 1908
• Court: United States State Supreme Judicial Court of Massachusetts

198 Mass. 1

84 N.E. 441

WOODBURY et al.

v.SPARRELL PRINT.

SAME

v.SPARRELL.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 29, 1908.

Exceptions from Superior Court, Suffolk County; J. B. Richardson, Judge.

Two actions by Edwin S. Woodbury and others-one against the Sparrell Print, and the other against R. Edwin Sparrell. Verdict was adverse to plaintiffs, and they bring exceptions. Exceptions sustained.

At the close of the testimony the following requests for rulings were made by the plaintiffs:

‘(1) That on all the evidence the plaintiffs are entitled to recover.

‘(2) The plaintiffs are entitled to recover for the period that the premises, which were the subject of the lease in question, remained unleased.

‘(3) The plaintiffs were not obliged to use any effort to get new tenants for the premises in order to recover for the period that the premises in question remained unleased.

‘(4) The plaintiffs were not required to repair the premises out of their own funds as an aid in securing a tenant to entitle them to recover.

‘(5) The plaintiffs had a right to rely on their best judgment exercised in good faith in determining the time of making repairs and the amount of repairs.

‘(6) The plaintiffs were not required to make additions to or alterations in the premises as an aid to securing a new tenant to entitle them to recover.

‘(7) The plaintiffs had the right to reject the offer of Samuel Ward Company made in its letter of May 17, 1903, because it involved changes in and additions to the premises and a longer term than remained of the lease.

‘(8) The plaintiffs were not obliged to make a counter offer to the Samuel Ward Company as to price if the two elements were fixed, viz., the five-year lease and the changes and additions proposed.

‘(9) The burden of proving want of diligence by the plaintiffs in reletting is on the defendant.

‘(10) Interest is to be reckoned on the several installments of lost rent from the time the lease provided that they severally became due.’

Following is the court's statement as to the fourth and fifth requests:

‘The fourth I give in part: ‘The plaintiffs were not required to repair the premises out of their own funds as an aid in securing a tenant to entitle them to recover.’ If by repairs mentioned here it refers to alterations or additions in the structure of the building, like removing floors or partitions or altering the structure of the building, I should say they were not required to make those repairs or large repairs, and I give that if it means that; but if it means, the repairs there, if it means only repairing the roof so as to make it safe and tight and in a condition to be occupied, or if the stairs by being worn out had become unsafe and unsuitable, then I think you may consider whether or not in view of the circumstances and the situation, whether or not they ought not to have made those repairs, if by making those repairs to the roof and stairs, and possibly the doors and some others-you may consider whether or not under all the facts and circumstances they should not have made those small repairs in order to have performed their obligation under lease.

‘Fifth: ‘The plaintiffs had a right to rely on their best judgment exercised in good faith in determining the time of making repairs and the amount of repairs.’ That is true, if they take into account the fact that these defendants were also interested to some extent in that matter. These plaintiffs could not act entirely regardless of the defendants, the Sparrell Print, as I have said before, because there was a relation there between these parties existing after the termination of the lease, and as the Supreme Court of the United States in this case has said: ‘It was the duty to prevent unnecessary loss or diminution of rent in consequence of the termination of this lease, so far as they could, by using fair, reasonable diligence and effort to let them so as to get some income out of them.’ They were not obliged to let to an irresponsible tenant-there has been nothing said in this case about that as far as I know-they would not be obliged to let to anybody that would run down and depreciate the character of the building probably. There has been nothing said about that, no intimation of that. I thought I would say that because it seemed to me pertinent or proper that I should do so.'George R. Swasey and Wm. H. Brown, for plaintiffs.

W. B. Sprout and G. C. Abbott, for defendants.

HAMMOND, J.

These are two actions of contract brought, the one against the lessee and the other against the guarantor, upon a clause in a lease given by the predecessors in title of the plaintiffs, which provides, inter alios, that for nonpayment of rent the lessors may enter upon the premises and ‘repossess the same as of their former estate; and, in case of such determination, the lessee shall be liable to the lessors for all loss and damage sustained by the lessors on account of the premises remaining unleased or being let for the remainder of the term for a less rent than that herein reserved.’ The lease ran by its terms until August 1, 1904, but on April 4, 1903, the plaintiffs...