321 Mass. 82 | Mass. | 1947
This is an appeal by the plaintiff from a decree dismissing a bill in which he sought specific performance of a covenant to renew a lease.
The plaintiff and his partner Rubin
The bill was rightly dismissed.
If the plaintiff was entitled to a renewal, that right was not lost by the conveyance to the God eres, who took title subject to the rights of the plaintiff under the lease. Leomin-ster Gas Light Co. v. Hillery, 197 Mass. 267, 269. Judkins v. Charette, 255 Mass. 76, 81. But the right to a renewal was not established. The plaintiff concedes that no notice to renew in accordance with the terms of the lease was ever sent, but contends that this requirement was waived. A lessor, of course, may waive such a provision. Stone v. St. Louis Stamping Co. 155 Mass. 267, 270. Wood v. Edison Electric Illuminating Co. 184 Mass. 523, 527. The judge, however, found that there was no waiver, and from an examination of the evidence, which is reported, we cannot say that this finding was plainly wrong. Blair’s Foodland Inc. v. Shuman’s Foodland, Inc. 311 Mass. 172, 174. The plaintiff, relying on the principle that in equity time ordinarily is not of the essence (Preferred Underwriters, Inc. v. New York, New Haven & Hartford Railroad, 243 Mass. 457, 463-464), urges that there was substantial compliance with the terms of the renewal clause by conduct on his part after the
The defendants Charles E. and Helen B. Godere ask that the final decree be modified so as to include certain relief prayed for .in their counterclaim, which was dismissed without prejudice. But they did not appeal, and it is not open to them to ask for a decree more favorable to themselves. Coe v. Coe, 313 Mass. 232, 234. Greenaway’s Case, 319 Mass. 121, 122.
Decree affirmed with costs.
Early in 1940 the partnership was dissolved and the plaintiff acquired all of Rubin’s rights with respect to the lease.
The lease was recorded in the registry of deeds.