Massachusetts Home Missionary Society v. Sirianni

252 Mass. 352

Opinion

Wait, J.

The plaintiff is entitled to a decree. No objection to the form of the decree ordered by the Superior Court 'has been made or argued by the defendants. They contend that the plaintiff is not entitled to the extension of the lease of November 29, 1919, which it demands, on the ground that there has been waste of the premises, and a failure to comply with the covenant “to quit and deliver up the premises ... at the end of the term in as good order and condition, reasonable use and wearing thereof . . . excepted, as the same now are, or may be put into . . . .”

There has been no waste. The failure to replace an iron fence removed apparently because of defective condition due to ordinary wear and tear, does not require as matter of law a finding that waste has been committed; nor does a slight defect in a brick wall. Delano v. Smith, 206 Mass. 365.

The lease contained a right to an extension which the tenant seeks to assert. The term of the lease has not ex pired. Stone v. St. Louis Stamping Co. 155 Mass. 267. See DeFriest v. Bradley, 192 Mass. 346, 351. The time has not yet come at which the lessor can insist upon performance of the covenant to put the premises in like good order and repair as at the date of the lease. Atkins v. Chilson, 9 Met. 52, 63.

The breaches urged are too trivial to require action by a court of equity to defeat the claim of the plaintiff.

Decree affirmed.