Burofsky v. Turner

Field, J. This action of contract for breach of a written lease of a store in Waltham was tried in the Superior Court by a judge and jury and resulted in a verdict for the plaintiff.. The case is here on the defendant’s exceptions to the denial of his motion for a directed verdict, and the refusal of certain requests for rulings, and to a part of the judge’s charge, and the admission of evidence. A lease dated January 25, 1923, from Mary A. Hall- and from the executors of the will of her deceased husband, whereby they did “lease, demise, and let” the store in question to the plaintiff to “hold” for a term ending May 1, 1931, at an annual rent, and a warranty deed, dated April 28, 1928, from said Mary A. Hall to the defendant, of a parcel of land and the buildings thereon where the store was situated, were in evidence. No question of the validity of lease or deed is raised. The lease contained no provision in terms that the lessor should repair, and no express covenant for quiet enjoyment of the store by the lessee. It contained a provision that “in case the premises, or any part thereof during said term, be destroyed or damaged by fire or other unavoidable casualty, so that the same shall be thereby rendered unfit -for use and habita [580] tian, then, and in such case, the rent hereinbefore reserved, or a just and proportional part thereof, according to the nature and extent of the injuries sustained, shall be suspended or abated until the said premises shall have been put in proper condition for use and habitation by the said lessors, or these, presents shall thereby be determined and ended at the election of the said lessors or their legal representatives.” There was evidence that the defendant started to demolish the building containing the store leased to the plaintiff “ about the twenty-fifth or twenty-first day of March, ,1929.” Two letters from the superintendent of public buildings of Waltham were put in evidence. One of them, dated January 29, 1929, and addressed to the defendant, referred to G. L. c. 143, §§ 4-8, and notified the defendant that the building of which the store in question was a part “ must be vacated at once and then the building either repaired to conform to the Building Laws, or demolished.” The other, dated January 31, 1929, and addressed to the defendant’s attorney, read as follows: “ Relative to the notice dated January 29, 1929 sent by this office to your client, Henry A. Turner, requiring him to demolish at once the building . . ; ■ [in question] as the same is unsafe and dangerous, your request that the time for demolishing of said building be extended for a period of sixty days, to wit: to April 1, 1929, is hereby granted.” It did not appear that any person had appealed from the order of the superintendent of public buildings to the Superior Court under G. L. c. 139, § 2; see G. L. c. 143, § 10. A letter was in evidence, dated February 1, 1929, from the defendant, by his attorney, to the plaintiff, stating that the defendant ■had received notice “ under proceedings by the authorities ” that the building had been “ condemned ” and that “ all the occupants of the building ” including the plaintiff “must vacate the premises not later than April 1, 1929,” and notifying the plaintiff to vacate the premises occupied by him not later than that date. There was evidence from which the jury would have been warranted in finding that the building could have been “ made safe.” [581] 1. The motion for a directed verdict was denied rightly. Though the lease contained no express covenant for quiet enjoyment, such a covenant was implied (Dexter v. Manley, 4 Cush. 14, 24, William A. Doe Co. v. Boston, 262 Mass. 458, 460-461, and cases cited, Stott v. Rutherford, 92 U. S. 107, 109, see cases collected in note, 62 Am. L. R. 1258-1263), effective at least so long as the lessors, or anyone deriving title from them, had any estate in the land (Williams on Real Property [24th ed.] 738, and cases cited), and, though the lessor’s assigns were not mentioned in the lease, ran with the land so as to bind the defendant, the assignee of the reversion. See Shelton v. Codman, 3 Cush. 318, 320; Watts v. Bruce, 245 Mass. 531, 532-533; Manchester, Sheffield & Lincolnshire Railway v. Anderson, [1898] 2 Ch. 394, 402-403. “ As against the leáse, including all rights secured by covenants running with the land, the defendant took nothing. All his rights under the deed are subject to the lease, and are subordinate to the plaintiff’s rights under the lease.” Leominster Gas Light Co. v. Hillery, 197 Mass. 267, 269. The provision in the lease with reference to destruction or damage of the premises “by fire or other unavoidable casualty” is not inconsistent with such an implied covenant. We need not consider to what extent, in the absence of an express covenant to repair, the defendant, being in control of part of the building, had a duty to repair, for, even if he had no such duty, the implied covenant for quiet enjoyment bound him “not to do any unnecessary thing to disturb the possession ” of the plaintiff, and taking down the building, unless necessary, was a breach of this covenant. Kansas Investment Co. v. Carter, 160 Mass. 421, 430. Moreover, neither “ a mere want of repair, arising from lapse of time or improper use of the premises” (Welles v. Castles, 3 Gray, 323, 325, see also French v. Pirnie, 240 Mass. 489), nor an unnecessary removal of the building was an “ unavoidable casualty ” rendering the premises “ unfit for use and habitation ” so as to entitle the defendant to terminate the tenancy under [582] the express provisions of the lease. Though the order of the superintendent of public buildings was not in the language of the statute (see § 6), we assume in favor of the defendant that it was a valid order thereunder and, not being appealed from (see § 10), was binding upon both plaintiff and defendant. In terms it required that the building be “ either repaired to conform to the Building Laws, or demolished.” The later letter of the superintendent extending the time for demolishing the building did not deal with the alternative of repairing it and is not to be construed as depriving the defendant of his right of election between repairing and demolition. Indeed the statute authorizes an order to the owner of a building “ to remove it or make it safe,” but gives the superintendent of public buildings no authority to deprive such an owner of his right of election between these alternatives. The defendant, therefore, under the order had a right to make the building safe if possible and was liable to the plaintiff for breach of the implied covenant for quiet enjoyment if, instead of making the building safe, he took it down unnecessarily. Kansas Investment Co. v. Carter, 160 Mass. 421. Since the evidence warranted a finding that the building could have been “ made safe ” and, therefore, was taken down unnecessarily, a verdidt for the defendant could not have been directed properly. 2. For reasons already sufficiently indicated, there was no error in the refusal of the judge to rule as requested by the defendant or in that part of the charge to which the defendant excepted. 3. There was no prejudicial error in the admission of evidence. When counsel for the plaintiff offered the lease in evidence he “tore from the back . . . [of it] a paper . . . which had been fastened ” to it. The defendant objected to the admission of the lease without the paper, but it was so admitted, subject to the defendant’s exception. He did not offer the paper in evidence. This paper was an agreement dated October 15, 1925, for the extension of the term of the lease until May 1, 1936, and contained the provision that if the owners of the premises [583] “shall at any time during said additional term demolish the buildings on said real estate . . . the within lease and this agreement of extension and the said additional term, shall cease and determine.”. Without discussing the rules of evidence applicable, it is sufficient to say that, since this agreement for extension of the lease did not purport to affect the rights and liabilities of the parties during the term created by the original lease, the defendant was not harmed by the admission of the lease without the paper. Exceptions overruled.