Haynes v. Synnott

Opinion by Mr. Justice Fell, The assignment of error in this ease is to the refusal of the court to enter judgment for want of a sufficient affidavit of defence. The plaintiffs leased to Albert G. Smalley a property in Boston, Massachusetts, for the term of five years, commencing June 1,1886. The lease contained a covenant for the payment of the rent and “ also the taxes and water taxes which may be payable for or in respect of the said premises or any part thereof during the said term.” The plaintiffs paid the taxes assessed [184] May 1,1886. The lessee paid for the four years following, but, not for the fifth. This action is to recover of the defendant,' who was surety on the lease, the taxes assessed May 1,1891, and paid by the plaintiffs after the expiration of the term. It is not claimed that the lessee was bound to pay more than five years’ taxes. The contention on the part of the plaintiffs is that under the laws of Massachusetts the lessee was not bound to pay the taxes for the first year of his lease, they having been assessed before the commencement of his term, but was bound for the last year’s taxes, assessed before its end. In support of this contention it is averred in the statement that “the said lease was made and executed in Boston, and its covenants were to be performed there, and it was therefore subject to the laws of Massachusetts, under which a tenant who covenanted by his lease to pay the taxes levied and assessed during his term is liable for all taxes levied and assessed during such term. The said Smalley did not pay, and was not bound to pay, the taxes assessed May 1,1886.” In answer to this averment it is stated in the affidavit of defence that “ the said Albert Gr. Smalley, lessee, did not covenant to pay to the plaintiffs the taxes levied and assessed on the demised premises, the words which import such covenant having been scored out in the contract and intended to be eliminated. The taxes now claimed for were not payable for or in respect of the said premises or any part thereof during the said term, but were for taxes payable from the property for the year ending May 1, 1892, covering but one month of the lease.” It is not denied that the copy of the lease filed is a true copy, and the court was not informed as to what words were “ scored out and intended to be eliminated,” but only as to the defendant’s understanding of the effect of the erasure of certain words which are not given. The assertion that the taxes were not payable for or during the term, with the qualification that they were for the year ending May 1, 1892, is not in denial of the plaintiff’s statement, but is in entire harmony with it, and leaves untouched the essential averment, that under the facts stated? and the written contract, and the law, the defendant is liable. The plaintiff’s case rests upon the averment of the contract .and of its meaning and effect under the laws of Massachusetts, by which it is to be interpreted. The affidavit denies neither [185] the contract as' set out nor the law as stated, and is therefore insufficient. It is unnecessary to more than refer to the remaining grounds of defence. The mere giving of time to the tenant for the payment of taxes did not release the defendant from his obligation, and as this is a contract of suretyship no previous demand of the principal was necessary. The judgment of the court is reversed, and it is now ordered that the record be remitted to the court of common pleas, with directions to enter judgment against the defendant for such sums as to right and justice may belong, unless other legal or equitable cause be shown to the court why such judgment should not be entered.