Kabley v. Worcester Gas Light Co.

102 Mass. 392

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1869
• Status: Published

Opinion

Ames, J.

The question whether a written instrument is a lease, or only an agreement for a lease, depends on the intention of the parties to be collected from the whole instrument. Bacon v. Bowdoin, 22 Pick. 401. The form of expression “ we agree to rent or lease” is far from being decisive upon this question, and does not necessarily import that a lease is intended to be given at a future day. On the contrary those words may take effect as a present demise, and the words “ agree to let ” have been held to mean exactly the same thing as the word “let,” unless there be something in the instrument to show that a present demise could not have been in contemplation of the parties Doe v. Benjamin, 9 Ad. & El. 644. The test seems to be that if the agreement leaves nothing incomplete it may operate as a present demise. Doe v. Ries, 8 Bing. 178. The agreement relied upon by the plaintiffs contains no stipulation for a lease at any future time, and there is nothing to show that any more formal document was contemplated. ' It is not prospective or executory, and it does not indicate that anything remained to be done on the part of the plaintiffs. It gave to the defendants an immediate right of possession. Staniforth v. Fox, 7 Bing. 590. Doe v. Ashburner, 5 T. R. 163. Jenkins v. Eldredge, 3 Story, 325. It creates a term, beginning with the delivery of the instrument, and ending upon the completion of the gas-holder in a reasonable time ; and it stipulates for a rent, the amount of which was to be determined by arbitration. So far as the plaintiffs are concerned, it has all the essential qualities of a present demise. The report finds that the agreement, which we have considered as effectively a lease, was delivered to the defendants, and was accepted by them. Under such circumstances, their liability to pay rent is not qualified, or taker away, by proof that they never actually, occupied the premises. It is enough that they accepted the conveyance, which gave them the right of immediate and exclusive occupation. The law would imply, from such acceptance, a promise to comply with the terms of the lease; Guild v. Leonard, 18 Pick. 511, 516; Goodwin v. Gilbert, 9 Mass. 510; and such a promise is not within the statute of frauds. Felch v. Taylor, 13 Pick. 133. Under that implied promise the defendants would be responsible, even though they refuse to take possession of the property. Taylor Landl. & Ten. § 176. They hold the premises whether they occupy them or not; Pinero v. Judson, 6 Bing. 206 ; and such holding constitutes legal or constructive possession. The fact that they did not erect the proposed building on the premises might show an abandonment of the lease, but it would not have the effect to relieve them from the obligation to pay the stipulated rent, if the lease had once been accepted so as to vest the estate.

If actual occupation were necessary in order to render the defendants liable, the clearing of the land by their direction after the award in relation to the rent had been made known to them, would warrant the jury in finding such an exercise of dominion over the premises as to be equivalent to actual entry.

On these grounds, our conclusion is that the case was improperly withdrawn from the jury and must

Stand for trial.