Leighton v. Ricker

Morton, J. The single question in this case is whether the defendants can set off against the rent due to the plaintiff the amount paid by them to the town of Winthrop for water used on the premises during the second lease. In the first lease it was expressly provided that the defendants should pay the water rates, but the second lease was silent on the subject. The defendants supposed that it required them to pay the water rates just as the first did. The plaintiff knew that the defendants were paying the water rates, but nothing was said by either party about them till after the lease had expired and the water rates had all been paid. The lease permitted the premises to be used only for a hotel, and the water which the defendants paid for was essential to the use of the premises as a hotel. Upon these facts, which are substantially all of the facts, the auditor ruled that the defendants could not recover of the plaintiff the amounts paid for water rates, and the Supe [566] rior Court affirmed the auditor’s ruling, and ordered judgment accordingly. We think that the ruling was right. The water rates did not constitute a lien on the premises which the plaintiff ultimately would have been obliged to pay, as in the case of taxes. Turner v. Revere Water Co. 171 Mass. 329. The payment by the defendants lacked therefore the justification which perhaps it is possible that such a fact might have furnished under some circumstances. The defendants cannot recover without showing that the plaintiff was liable in some way for the water rates. It is not contended that she agreed to pay them. And we do not think that any agreement on her part to pay them can be implied, because the water was essential to the premises for the purpose for which they were leased. It hardly can be said, we think, that a landlord impliedly agrees to pay for whatever is essential to the use of the premises which he leases. There was nothing in the conduct of the plaintiff to constitute a liability by estoppel, and the fact that the defendants may have misapprehended the effect of the lease can, of course, furnish no ground for recovery against the plaintiff. Judgment affirmed.