Hawkins v. Gold Brand Confectionery, Inc.

Sanderson, J. This is a bill in equity brought by the owner of a six-story building, in Boston, against the defendant, who holds, under a written lease, the basement, first and fourth floors to be used for manufacturing and storing confectionery. The other floors are let to various tenants. The lease provides that the defendant shall not permit any holes to be drilled or made in the stone or brickwork of the building, and that the lessee will keep the premises in the same order and condition as they are in at the commencement of the lease; that the premises shall not be damaged or defaced, and that no addition or alteration to or upon the premises shall be made without the consent in writing of the lessor. The defendant, without the written consent of the plaintiff, installed upon the premises a refrigeration machine in the basement, and, as incidental thereto, fastened pipes to the walls and caused holes to be drilled in the stone and brickwork through which pipes were passed from the basement of the building through portions of it not leased to the defendant. The use of the ice machine was reasonably necessary in connection with the business for which the premises were leased. The judge found that, if written permission for the necessary openings and fixtures attached to the walls was required under the terms of the lease,' this requirement had been waived. The lessee was not required by the terms of the lease to pay water rates. The plaintiff offered evidence, subject to the defendant’s exception, to prove an oral agreement with Samuel Herwitz, vice-president and manager of the defendant, for the installatian of a meter to measure the amount of water used in operating the machine, and for the payment by the defendant for such water as it might use. The judge found that the defendant had installed the machine subsequently to the execution of the lease, and that the pipes had been run as described upon the express agreement with Samuel Herwitz that [171] the defendant should pay all water rates on account of the use of the machine; that a meter was installed in accordance with this agreement; that after Herwitz had severed his connection with the defendant, the new manager employed, after making one payment for water, discovered that the lease did not provide for the payment of water rates by the defendant, and declined to make further payments. The judge found the amount due for water under the agreement, and found that the contract was valid and binding because it gave the defendant the right to extend pipes through the premises not subject to lease. After stating that no objection had been made either in the pleadings or at the trial on the ground of want of equity, he ruled that the plaintiff was entitled to relief under her bill, and ordered that a decree be entered for damages for breach of contract, being the amount due under the contract for water to the date of the final decree, or for the removal of the pipes installed upon the premises not leased to the defendant. The decree following this order was for the payment of the amount due for use of water and included no order as to the pipes. The evidence that Herwitz was the man with whom the lessor’s agent always dealt, that he was in charge when the refrigerating machine was put in, that he executed the lease in behalf of the defendant, and the other evidence relating to his duties, justified the judge in reaching the conclusion that he was agent of the defendant authorized to bind the corporation by the agreement made by him in its behalf. The exceptions to the admission of evidence must be overruled. The defence that the plaintiff had an adequate remedy at law was not properly raised at the trial. Counsel for the defendant referred to this matter during the admission of evidence but he made no request for ruling concerning it. The remark by counsel during the trial that the plaintiff had an adequate remedy at law did not present any question of law as to that defence. That question cannot be raised for the first time by appeal from the final decree. Driscoll v. Smith, 184 Mass. 221. Luciano v. Caldarone, 255 Mass. 270, 272. The allegation in the bill that the plaintiff has been put to [172] great expense for the use of water for which the defendant has declined to reimburse her is broad enough to include within its scope a claim for the amount due for water. The prayers also sought an accounting for the water used and asked for general relief. There was evidence upon which the judge was justified in making the findings as to the amount due for water. Decree affirmed with costs.