Holbrook v. Chamberlin

116 Mass. 155, 1874 Mass. LEXIS 49

• Court: Massachusetts Supreme Judicial Court
• Decided: October 23, 1874
• Status: Published

Opinion

Gray, C. J.

The law is settled in this Commonwealth, that the unauthorized execution of a deed in the name either of a part nership or of an individual may be ratified by parol. Cady v. Shepherd, 11 Pick. 400. Swan v. Stedman, 4 Met. 548. McIntyre v. Park, 11 Gray, 102. The defendants have therefore no ground of exception to the ruling that the defendant Barker, having entered under the lease sued on, was estopped to show that his copartner was not authorized to sign his name to it.

The remaining questions in the case relate to the effect of the covenant of the lessees to “ deliver up the premises and all future erections and additions to or upon the same ” to the lessor at the end of the term “ in as good order and condition as the same now are or may be put into by the lessor.”

The panes of glass in the windows, repaired after the date of the lease and before the beginning of the term, appear by the report to have been so repaired by the lessees in consideration of being allowed by the lessor to occupy part of the premises during the same period. They were thus in effect repaired by the lessees in behalf of the lessor, and stood as if they had been put in repair by the lessor before the execution of the lease; and the plaintiff is entitled to recover the value of the glass afterwards broken during the term.

It was admitted at the argument, that at the beginning of the term there was no machinery on the premises, except the main shaft. The counter-shafting, pulleys, hangers and belts, the portable boiler and the steam pipes connected with it, were either trade fixtures, removable by the lessees during the term, or per sonal chattels. Poole's case, 1 Salk. 368. Lawton v. Lawton, 3 Atk. 13. Winslow v. Merchants Ins. Co. 4 Met. 306, 311. McLaughlin v. Nash, 14 Allen, 136. Pierce v. George, 108 Mass. 78. The fact that the lease contained an agreement of the lessor to sell the premises to the lessees did not affect their rights in this respect.

The right of a tenant to remove trade fixtures may doubtless be qualified by the covenants in the lease. But we are of opinion that the covenant to deliver up in good order “ all future erections or additions ” to or upon the premises is limited, in purpose and effect, to new buildings erected or old buildings added to — putting such erections and additions upon the same footing, in respect of the obligation to keep in repair, as the buildings upon the premises at the time of the execution of the lease; and cannot be extended so as to deprive the tenants of the right to remove trade fixtures, much less personal property, put by them upon the premises during the term. Bishop v. Elliott, 11 Exch. 113.

In Naylor v. Collinge, 1 Taunt. 19, the things removed were “ buildings,” coming within the very words of the covenant; and yet such of them only as were affixed to the freehold, and not such as rested upon blocks, were held to be included. In all the other cases cited for the plaintiff upon this point, the covenant either expressly named the fixtures or comprised “ all improvements.”

It follows that the learned judge of the Superior Court erred in instructing the jury that the plaintiff was entitled to recover the value of the articles put in and taken away by the defendants.

The wood-cutting machine, belonging to the lessor and upon the premises at the beginning of the lease, was also, within the authority of McLaughlin v. Nash and Pierce v. George, above cited, a mere chattel, which did not pass to the lessees by the lease, and for the destruction of which the lessor cannot maintain an action upon the covenants therein contained.

It follows that, according to the terms of the report, the sums assessed by the auditor for which we have held the plaintiff not to be entitled to recover are to be deducted from the amount of the verdict, interest computed on the remainder from the date ol the writ, and

Judgment rendered for the plaintiff accordingly.