Durr v. Chase

Field, C. J. This case was tried by the court without a jury. By the lease, the defendant let to the plaintiffs “ all the brick building recently erected by me on the northerly corner of ' Stamford, Prospect, and South Margin Streets in the said Bos-1 ton, with the exception of the stores on the first floor of the said building together with the cellar under and belonging to the same,” etc. The question at the trial was what building was covered by the lease. In applying the lease to the land, oral evidence was competent to show where, .at the time of the execution of the lease, the streets were, and what building there was on the corner of these streets then recently erected by the defendant. Construing the lease with reference to the undisputed facts, we doubt whether any real ambiguity appears ; but if there is any ambiguity, it is a latent, and not a patent ambiguity. The exceptions recite that the corner building, which had been originally two buildings and had been converted into one by removing the partition wall, “ was originally designed by the defendant for three flats, but that, at the request of the plaintiffs prior to the execution of the lease, it was changed over into lodgings,” etc. The adjoining building on Prospect Street was separated from the corner building by a solid brick partition wall, extending from the cellar to a foot or more above the roof, and contained, above the store on the first floor, three flats or suites of four rooms , each, adapted for housekeeping. This partition wall between the two buildings had no openings of any kind from one building into the other. The first exception is to the exclusion of evidence offered by the plaintiffs that “they informed the agent of the defendant for what purpose they, proposed to use the premises.” If this evidence was offered for any other purpose than to affect the damages, we do not see the pertinency of it. Certainly it does [46] not appear that the plaintiffs have been harmed by the exclusion of it. The second and third exceptions relate to damages, and the witness was not qualified to testify on the subject. Of the requests made at the close of the testimony, the first, sixth, and eighth were given. The seventh request relates to damages. The remaining requests relate to the meaning of the description of the premises in the lease as applied to the building and land, and could not be given as pure matters of law, independently of any evidence relating to the building on the corner of the streets mentioned. The finding of fact by the court, that “ the lease did not include the building in controversy,” was warranted, if not required, by the undisputed facts. ¡Exceptions overruled.