A & S Products Corp. v. Parker

10 Mass. App. Dec. 46
CourtMassachusetts District Court, Appellate Division
DecidedSeptember 13, 1955
DocketNo. 7076, No. 7439, No. 8571; No. 4893, No. 4893A, No. 4893B
StatusPublished

This text of 10 Mass. App. Dec. 46 (A & S Products Corp. v. Parker) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A & S Products Corp. v. Parker, 10 Mass. App. Dec. 46 (Mass. Ct. App. 1955).

Opinion

Brooks, J.

These three cases come up on a consolidated report. They stem from the same cause of action; involve the same parties, pleadings, and issues except that each action is for a different interval of time. They were tried together. Before (Gourdin, Sp. J.)

There are three actions of contract in which plaintiff as lessee, under a written lease executed on or about May 11, 1933, to take affect June 1st, and to run for two years, seeks to recover damages for breach of the lease from defendant, the lessor of the premises. The following clause in the lease is pertinent:

"The lessor agrees to use due diligence in [47]*47furnishing heat for the premises during the usual business hours during the heating season, but the lessor shall not be responsible for any interruption in the supply of heat or for any claims arising as a result thereof.”

Plaintiff alleges that by the terms of the lease, defendant agreed to use due diligence in furnishing heat for the premises during the usual business hours during the heating season, but that defendant breached that agreement and as a result, plaintiff incurred considerable expense, was greatly damaged in its business and was deprived of the enjoyment of such premises. Docket No. 7076 is for the period from October 13, 1953, to December 11, 1953. Docket No. 7439 is for the year December 11, 1953, to February 15, 1934. Docket No. 8571 is for the period from February 15, 1954, to August 30, 1954.

Defendant’s answer in all three actions is a general denial, payment, and an allegation that defendant has used due diligence in furnishing heat to the premises but that plaintiff has left the doors to its premises open whereby the heat is permitted to escape and cold air to enter said premises.

Defendant filed a motion for specifications in all three actions asking information as to all items of damage which plaintiff claims to have suffered. Plaintiff in each action specified the following: "Loss of man hours of work by employees, discomfort of lessee and employees, inability to perform usual duties, electricity consumed to operate heating blowers.”

At the trial of the three actions, there was evidence tending to show that the premises consisted of a 2-story building with a basement subdivided and occupied by two tenants. Plaintiff occupied the first and second floors, which had, prior to May, 1933, been vacated. The building, prior to the lease, had no heating equipment.

Adjacent to the foregoing premises was another industrial building owned by defendant, heated by [48]*48a central heating system. Sometime during the summer of 1953, new pipe lines were run from the central heating system to the premises occupied by plaintiff. In November, 1933, one blower type unit heater was installed on the first floor and another one on the second floor. During December, 1953, a second such heater was installed on the first floor and another on the second floor. These heaters were installed and connected by defendant but were not wired to the electricity by defendant. They were in each instance wired by plaintiff to its own electric meter.

Some heat was first supplied to plaintiff’s premises during November, 1953. However, plaintiff complained frequently about insufficient heating and the matter was discussed between officers of plaintiff and agents of defendant. These premises were used by plaintiff for sale and distribution at wholesale of hardware, kitchen, and household wares and other related purposes. There was also an office and a showroom. There were four shipping doors, seven or eight feet wide and six or seven feet high through which goods were received and shipped daily. During the receiving and shipping of goods, the door remains open for periods ranging from five to twenty minutes.

There was evidence that conversations took place between officers of plaintiff and agents of defendant during May, 1953, subsequent to execution of the lease in which defendant’s agent promised plenty of heat when the cold weather arrived. After the installation of the original blowers, there was no heat because the blowers had not been wired. After complaint by plaintiff of insufficient heat, defendant’s agent installed the additional blowers, but plaintiff had to wire the blowers to its own meter. The premises were so cold as to require the employees to be heavily dressed. On one occasion in December, 1953, there was a skim of ice over the water in the toilet bowl. Because of the cold, plaintiff purchased a space heater for both floors.

[49]*49in November, 1954, defendant’s workmen took down the piping and blowers previously installed, re-installed and re-located all heaters and re-placed the piping. Two additional heaters were added on the first floor and one more on the second floor. These were wired to plaintiff’s electric meter. Since that time the heat has been adequate.

There was expert testimony by plaintiff’s witness that the four unit heaters were inadequate to heat the premises, even if properly installed, but they were not properly installed. Defendant’s evidence contradicted plaintiff’s evidence in numerous aspects of the case.

At the trial, an expert witness, presented by plaintiff, was permitted to testify over defendant’s objection and subject to defendant’s claim for a report that the fair, yearly rental value of the premises heated was $3434 and that unheated the fair, yearly rental value was $2382. Another witness for plaintiff testified over defendant’s objections and subject to defendant’s claim for a report that the reasonable value of fuel to supply heat for the premises for one year, commencing June 1, 1953, was $iojo. Defendant’s objections in each instance were based on the fact that plaintiff’s specifications did not include the difference in value of the premises heated and unheated as an item of damage.

At the close of the trial defendant seasonably filed certain requests for rulings, the same in all three actions, which, with the court’s action thereon are as follows:

1. The evidence introduced by the plaintiff is insufficient to warrant a finding for the plaintiff. Denied
2. The evidence introduced by the defendant is insufficient to warrant a finding for the defendant. Allowed
3. In order to prevail in this action, the plaintiff must affirmatively establish by a fair preponderance of the evidence that the defendant did not use due diligence in furnishing heat for the premises during the usual [50]*50business hours, during that part of the heating season here involved. Allowed
4. The plaintiff has failed to sustain the burden of establishing failure of the defendant to exercise due diligence in furnishing heat for the premises during the usual business hours, during that part of the heating season here involved. Denied
5. If the court should find for the plaintiff, then the measure of damages applicable in this action is the difference in value of the premises, heated as stipulated in the lease, and the value of said premises as they were in fact heated, and this difference cannot exceed the reasonable cost of supplying heat for said premises as provided in the lease. McCormick v. Stowell, 138 Mass. 431. Allowed
6.

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Bluebook (online)
10 Mass. App. Dec. 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/a-s-products-corp-v-parker-massdistctapp-1955.