Stimson v. Crosby

Loring, J. It is settled that a covenant in a lease of a part of a building, by which the lessee covenants to pay all the taxes [298] which may be payable for or in respect of the said premises, is a covenant to pay a proportion of the tax assessed on the whole. In Wall v. Hinds, 4 Gray, 256, where such a covenant was in question, it was contended that the covenant was to be construed literally, and if no separate tax was assessed on the part of the premises in question, nothing was due. That argument did not prevail, and an apportionment based on the relative taxable value was upheld. In Codman v. Hall, 9 Allen, 335, and Amory v. Melvin, 112 Mass. 83, a usage in Boston to apportion the taxes in such a case by the rentals in force at the date of the tax was proved, and a tenant was held liable on such a covenant for the proportion so ascertained. By the terms of the lease in the case at bar, the lessor was to pay the taxes. The covenant in question is not a covenant to pay any excess in case, the taxes now payable for, or in respect of, said premises shall be increased, but it is a covenant “ in case the taxes now levied on said premises should be increased above the present assessment, that the lessee shall pay such excess.” The terms used here point more directly to the tax assessed as the thing, which is the subject of the covenant, than is the case in the covenants in question in Wall v. Hinds, 4 Gray, 256, Codman v. Hall, 9 Allen, 335, and Amory v. Melvin, 112 Mass. 83. On the other hand there is a covenant in the lease immediately before the covenant in question, in which “ said premises ” mean that portion of the whole building which is covered by the lease. We refer to the covenant in which the lessee covenants to “make all repairs of every name and nature of said premises.” But it is a fact that the defendant had become the lessee of the rest of the building not covered by the lease in question a few days before this lease was executed, and that is a fact which can be taken into consideration in construing this covenant. On the whole, we have come to the conclusion that we should construe the contract literally, and that the thing dealt with in the covenant is the tax which is actually assessed, that is, the tax on the whole building. Exceptions overruled.