Kennon v. Shepard

Jenney, J. The plaintiff seeks to recover damages for failure to heat premises occupied by him as lessee of the defendant. The lease, as originally drafted, contained the following words inserted immediately after the description of the demised premises: "Including the heating of the said premises, and the use of the elevators in common with others, so far as the same may be run by the said lessor, but without any liability to him therefor, and without abatement of rent for the stopping thereof.” The words “and the use of the elevators in common with others” were stricken out before signing by a line drawn through them, and the lease as so modified was then executed. It was agreed at the argument that the lease was in force during the time involved in this action, because of a provision as to its continuance from year to year, which is not printed in the report. The case is considered on this basis. The plaintiff contends that the instrument must be construed as creating an unqualified obligation to heat the leased premises; and that if it cannot be so considered on its face, evidence should have been admitted showing the construction of this provision by the parties. The latter contention may be disposed of shortly. No offer of proof was made, and it does not appear, and cannot be assumed, that the judge did not permit the plaintiff to present for considera [59] tian any evidence properly bearing on the question of the construction of the lease. Warren v. Spencer Water Co. 143 Mass. 155. Cook v. Enterprise Transportation Co. 197 Mass. 7. The words eliminated from the contract before its execution cannot be restored; and they cannot be used in its construction. See Straub v. Screven, 19 S. C. 445; Watson v. Paschall, 93 S. C. 537. There is no right to strike out a material term from a contract in order to uphold it. It is well settled that where there are inconsistent provisions, the one requiring something to be done may be given greater consideration than the other which defeats a full performance; and that while repugnant words may sometimes be rejected, such a result is only to effectuate the evident purpose of the entire instrument, and such words are not to be considered immaterial where they are susceptible of a construction which is consistent with the rest of the contract and which gives effect to all of its terms. Morrill & Whiton Construction Co. v. Boston, 186 Mass. 217. Ferguson v. Union Mutual Life Ins. Co. 187 Mass. 8. The fair import of the words used is that, while the lessor promised to heat the premises, there was to be no liability in case he failed to do so. The subject is included in one short sentence. The limitation was not an attempt to defeat the entire lease, but only liability which might otherwise have arisen from one of its terms. No rule of law prevents the making of such a contract. Furnivall v. Coombes, 5 M. & G. 736, Williams v. Hathaway, 6 Ch. D. 544, and Watling v. Lewis, [1911] 1 Ch. 414, are not in accord with our decisions. These cases decide that words destroying the personal obligation of a contract are to have no effect, and are to be disregarded. See also Vickers v. Electrozone Commercial Co. 38 Vroom, 665. They are inconsistent with our decisions holding that a party to a contract may limit his personal responsibility. See Carr v. Leahy, 217 Mass. 438, and cases cited. The word “him” in the clause “without any liability to him” evidently refers to the lessee, as it is used in connection with the definition of his rights under the lease. Greenough v. Phoenix Ins. Co. of Hartford, 206 Mass. 247. Goodman v. Telfer, 230 Mass. 157. It follows that the verdict for the defendant was directed rightly, and that judgment must be entered thereon; and it is So ordered.