Zevitas v. Adams
| Decision Date | 02 July 1931 |
| Citation | 276 Mass. 307 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | CONSTANTENOS ZEVITAS v. CHARLES F. ADAMS & another, trustees, & others. |
May 13, 14, 1931.
Present: CROSBY PIERCE, CARROLL, WAIT, & FIELD, JJ.
Conspiracy. Landlord and Tenant, Termination of tenancy, Rent "Indemnity clause," Tenant at sufferance.
Equity Jurisdiction, To enjoin unlawful interference. Equity Pleading and Practice, Amendment, Decree, Appeal. Trust. Waiver.
In a suit in equity by a lessee of a building against the lessor and others, the plaintiff sought relief respecting an alleged illegal entry upon the leased premises by the lessor, the plaintiff further alleging that the lessor and the other defendants, in a conspiracy "to wipe out" the plaintiff's lease or to compel him to sell it for an inadequate price, had done acts to prevent a sale of his lease at a fair price and the consummation of other negotiations made by him.
Findings by a master to whom the suit was referred negatived the allegations by the plaintiff as to such acts by the defendants. It appeared that the defendant lessor properly entered the leased premises for breach of the terms of the lease. Held, that the plaintiff, not having proved wrongful acts by the defendants, could not maintain the suit.
A lease of a building by two trustees provided that the lessors, upon failure by the lessee to observe any of his covenants, might enter upon the leased premises without demand or notice. At a time when the lessee had committed a breach of his covenants by failing to pay rent and taxes when due, one of the trustees, who was the active trustee in the management of the property, stated to the lessee that he was in default, and subsequently authorized an attorney to enter and take possession of the leased premises in the name of the trustees. The attorney entered the building, walked part way up the stairs therein and declared that he thereby took possession of the premises in behalf of the trustees for breach of condition of the lease. He repeated that declaration in other parts of the building and placed under the door a notice to the lessee that entry had been made for nonpayment of rent and taxes. The other trustee made no objection to the active trustee's management. Held, that
(1) The authority given by the active trustee to the attorney to enter was sufficient;
(2) The entry was proper; (3) The lease was terminated by the entry even if the statement by the active trustee to the lessee did not constitute a legal demand.
Proceedings for registration of their title, instituted in the Land Court by the trustees after the entry above described, were held not to show a waiver of rights acquired by the entry to terminate the lease.
In all the circumstances, the trustees above mentioned were held not to have waived the lessee's failure to pay rent and taxes.
The defendant lessor in the suit in equity above described was permitted to amend his answer alleging a right to recover unpaid rent to the time of entry and also to recover, for a certain period subsequent to the time of entry, under an "indemnity clause" in the lease, whereby the lessee covenanted that upon a termination by reason of his default he would indemnify the lessor "against all loss of rent and other payments which" he "may incur by reason of such termination during the residue" of the term. Held, that
(1) The amendment properly was allowed; (2) The defendant lessor was entitled to recover from the plaintiff the rent to the time of entry;
(3) The defendant lessor was entitled to rent paid by subtenants in the building subsequent to the time of entry;
(4) The defendant lessor was not entitled to recover under the "indemnity clause": such recovery could not be had until the end of the term specified in the lease;
(5) The plaintiff under G.L.c. 186, Section 3, was liable to the defendant lessor for rent for such period as he remained in possession of the premises after termination of the lease.
Upon appeal by the plaintiff, in the suit in equity above described, from a final decree ordering, among other things, that the plaintiff pay the defendant lessor a certain sum under the "indemnity clause," it was open to the plaintiff to contend that the defendant lessor was not entitled to that sum although the plaintiff had not filed objections to the master's report nor appealed from an interlocutory decree confirming it.
BILL IN EQUITY filed in the Superior Court on April 11, 1928, and afterwards amended, described in the opinion.
The suit was referred to a master. Material findings by the master are stated in the opinion. The "indemnity clause" of the plaintiff's lease was as follows: "the Lessee covenants that in case of such termination, or in case of termination under the provisions of statute by reason of default on the part of the Lessee, he will indemnify the Lessors against all loss of rent and other payments which they may incur by reason of such termination during the residue of the time first above specified for the duration of the said term; or at the election of the Lessors the Lessee will upon such termination pay to the Lessors as damages such a sum as at the time of such termination represents the difference between the rental value of the premises for the remainder of the said term and the rent and other payments herein named."
By order of Gibbs, J., there were entered an interlocutory decree confirming the master's report, and a final decree, paragraph 7 of which was as follows:
Other material portions of the final decree are described in the opinion. The plaintiff appealed from the final decree and also alleged an exception to the allowance of an amendment to the answer of the defendant trustees.
W.P. Murray, (A.D. Diamond with him,) for the plaintiff.
S. Markell, (D.
H.Greenberg with him,) for the defendants.
CARROLL. J. The plaintiff, the lessee of a building at the corner of Washington and Dover Streets, Boston, the lease expiring May 31, 1935, occupied one of the stores and sublet the remainder. The defendants Charles F. Adams and Thomas B. Gannett as trustees under the will of Harvey Jewell (hereafter referred to as the trustees) are owners of the fee and the lessors of the plaintiff. The defendants Carl Dreyfus and Edwin J. Dreyfus Properties, Inc. were prospective purchasers. The defendant Harry Marcus was interested in the purchase of the property.
The bill alleges that the trustees, as individuals and trustees, "entered into a secret combination and conspiracy," by wrongful means with Dreyfus and Marcus, to prevent the plaintiff from purchasing the property and "to wipe out plaintiff's said lease" or to compel the plaintiff and his subtenants to sell their leases at an inadequate price. The plaintiff asserts that he had a contract to dispose of his lease at a fair price to persons ready, able and willing to purchase the same; that the trustees had agreed to sell the property to Marcus; that the plaintiff negotiated the contract; that he was to receive $10,000 for his lease and a broker's commission; that the defendants conspired to prevent this sale. The bill sets out in detail the various meetings, negotiations and proposals made and alleges that by the "power, influence, duress . . . and fraudulent conduct" mentioned in the bill, the defendants caused a number of persons who were about "to hire from the plaintiff . . . vacant portions of said premises, to refuse to have any dealing with the plaintiff"; that as a part of the conspiracy entry was made on the premises and the trustees took possession for alleged breach of conditions, when in fact there was no breach of the conditions of the lease.
The relief asked for was that the defendants be restrained from enforcing "any alleged claim of a breach of terms, covenants and conditions of said lease"; that it be ordered that the trustees illegally entered "or attempted to enter" the premises; that a decree be entered adjudging that no breach had been committed by the plaintiff and that damages be awarded the plaintiff for the injury to his property and business.
The case was referred to a master. The trustees filed an amended answer to recover for the accrued instalments of rent and indemnity under the lease. A final decree was entered dismissing the plaintiff's bill, providing for certain measures of relief for the trustees, with costs to the defendants. There was no appeal from the interlocutory decree confirming the master's report. There was an appeal from the allowance of the amendment of the trustees to their answer and an appeal from the final decree. The plaintiff also filed exceptions to the allowance of the trustees' amended answer. No objections were filed to the master's report.
The report of the master goes into all the details involved in the disputes between the parties and the results of the various negotiations. It is not necessary to refer to them, except in a general way. The lease under which the plaintiff held provided that the rent was to be paid in equal monthly instalments on the first day of each month.
Provision was made for the payment of taxes by the lessee. The lease was upon the condition that if the lessee neglected to perform any of the covenants of the lease the lessors could enter without demand or notice and repossess the premises as of their former estate. One of the plaintiff's...
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