Barnett v. Clark

225 Mass. 185

• Court: Massachusetts Supreme Judicial Court
• Decided: November 27, 1916
• Status: Published

Opinion

Pierce, J.

The question presented on the report is whether in an action to recover unpaid rent due on a covenant contained in an indenture of lease, evidence should have been admitted that, after the lessee had entered under the lease, the Massachusetts district police under authority of law adopted certain regulations governing the construction and maintenance of garages, compliance with which “necessitated the expenditure of considerable sums of money in the making of changes and alterations to make the demised premises conform thereto.”

The contention that the evidence was admissible rests on the assumption that the demise was limited to garage purposes, because it speaks of the leased premises as “The Garage” and because there is excepted from the covenant of the lease not to sublet the right “to sublet or sublease the aforesaid premises to the Western Massachusetts Cadillac Co. for garage purposes.” We are of opinion that the partial and restricted release of the covenant of the defendant not to lease or underlet did not by implication destroy or cut down the right (otherwise created by the words “lease” and “demise”) to use “The Garage” for any lawful purpose, and that the use of the descriptive words “The Garage” did not raise an implied warranty that the premises were when leased or would continue to be fit or usable for garage or any other purpose. Dutton v. Gerrish, 9 Cush. 89. Taylor v. Finnigan, 189 Mass. 568. Lumiansky v. Tessier, 213 Mass. 182.

The case at bar presents no fact to warrant a finding of actual or constructive expulsion of the lessee from the use and enjoyment of the whole or of any part of the premises by any intentional or wrongful act of the lessor. Bartlett v. Farrington, 120 Mass. 284. Skally v. Shute, 132 Mass. 367. Voss v. Sylvester, 203 Mass. 233, 240. The fact that the premises have remained unoccupied by the lessee since the order of the district police went into effect, does not distinguish the case at bar from the case of Taylor v. Finnigan, supra.

It follows that the evidence was excluded rightly, and that in accordance with the terms of the report judgment is to be entered for the plaintiff in the sum of $227.38 with interest from September 28, 1915.

So ordered.

I