Kansas Investment Co. v. Carter

Allen, J. 1. The defendants asked for a ruling, in substance, that after receiving the notice from the inspector of buildings Blackall had the right either to make the building safe and secure, or to remove it, as he might deem best; and that his election to remove it afforded no ground for imposing any liability upon Carter, the owner, even if the court should find that the [430] building could have been made safe and secure. This ruling was rightly refused. The St. 1885, c. 374, § 111, required the defendants, upon receiving the notice, to cause the building “to be made safe and secure, or taken down.” Doing either would satisfy the requirement of the statute. Salem v. Eastern Railroad, 98 Mass. 431, 441. Watuppa Reservoir v. Mackenzie, 132 Mass. 71, 74. The lease to the plaintiff contained an express covenant that the plaintiff “ shall peaceably hold and enjoy the said rented premises without hindrance or interruption by the said lessors or any person or persons whomsoever.” This covenant bound the lessors not to do any unnecessary thing to disturb the possession of the lessee. If it was necessary to take down the building for reasons of safety, then it might be taken down. But if the building could be made safe and secure without taking it down, and without disturbing the possession of the lessee, then the lessors would violate the lessee’s rights by taking it down. The right of election as to the mode of obeying the requirement of the statute, so far as the lessee’s rights are concerned, was limited by the covenant in the lease. If the building was taken down without necessity, then the lessors are responsible. See Taylor v. Plymouth, 8 Met. 462, 465. 2. The defendants asked for a further ruling, in substance, that there was no evidence that any authority was given by the defendant Carter to the defendant Blackall to remove the building, or that Blackall assumed to act by such authority. The written agreement of June 27,1892, was signed by the defendant Carter as owner of the estate, and also by Blackall, and in express terms Carter as owner thereby consented and agreed that the new building might be erected, and gave to Blackall an option to purchase the estate with the finished building thereon, and took a guaranty for the erection of the building. The testimony of his son and agent goes also to show his sanction to the proceeding. The case in this respect is stronger than Case v. Minot, 158 Mass. 577, and is sufficient to show not only that Carter gave authority, but that Blackall acted upon it. 3. The third ruling asked for became immaterial by the finding of facts which negatived the supposition upon which the request rested, and established that the building was removed in pursuance of authority from Carter. [431] No other questions are presented by the report. The general finding for the plaintiff implies that in the opinion of the court the building might have been made safe and secure, and that it was not necessary to take it down. No question was saved as to this. Judgment for the plaintiff on the findings.