Pfister & Vogel Co. v. Fitzpatrick Shoe Co.

R.UGG, J. This petition for leave to prove a claim was heard before a justice of this court, who found that the alterations, for which the petitioner asks damages, were made with the knowledge and assent of the petitioner, that they were reasonably necessary to adapt the premises to the uses of the defendant tenant as shoe manufacturer, and that the premises have not deteriorated during the occupancy by the wilful or negligent conduct of the lessee. These findings will not be disturbed unless shown to be plainly wrong. The evidence was oral, and the presiding justice saw the witnesses, and had the opportunity to test by his own observation the weight to which each was entitled. Without resting upon this ground, however, the finding appears upon the record to have been fully warranted. It is obvious that the building of the petitioner at the time it was leased was ill adapted - for economical use in connection with the defendant’s other factory without the making of some changes. There was evidence tending to show a discussion between the landlord and tenant as to these necessary changes, in which the former refused to bear any expense in that connection and gave the tenant to understand that he had no opposition to any changes it desired to make at its own expense. He knew of the alterations at the time they were made, and offered no objection respecting them until the lapse of more than four years. This evidence not only justified but almost compelled a finding that the petitioner agreed to the making of whatever reasonable adaptations of the building to its needs the tenant chose at its own cost. The alterations, although sufficient to constitute waste in the absence of assent from the landlord, were not very extensive nor expensive. Under these circumstances he cannot now ask to have the [279] premises put in the same condition as they were at the beginning of the defendant’s occupancy. In accordance with the terms of the report, let the entry be Petition dismissed.