Sargent v. Pray

Ames, J. The covenant of the lessees was not a mere promise of indemnity against the tax, but a promise to pay it to the lessors on the first day of November, each year of the term. It was not necessary to the plaintiffs’ right of action therefore, upon [269] that covenant, that they should first have paid the tax themselves. Wilkinson v. Libbey, 1 Allen, 375. The destruction of the building by fire did not entitle the tenants, under the clause of the lease referring to that contingency, to a proportionate abatement of the taxes payable by them. Wood v. Bogle, 115 Mass. 30. The plaintiffs are therefore entitled to recover the amount paid by them' to the city with interest from the date of the payment, not including the costs. The costs incurred by reason of any delay in their payment to the city must be considered as the result of their own fault or negligence, and are not to be included in the amount which the plaintiffs may recover. Judgment for the plaintiffs accordingly.