274 Mass. 589 | Mass. | 1931
This proceeding, brought under § 20 of G. L. c. 251 (a section added to that statute by St. 1925, c. 294, § 5), is a petition by the Boston Molasses Company, herein called the petitioner, for instructions to arbitrators upon a question of law arising under a lease from it to the Molasses Distributors Corporation, herein called the respondent. The petition was heard in the Superior Court upon the pleadings and certain oral testimony. An order instructing the arbitrators in conformity to a ruling made by the trial judge was entered and the case was reported for determination by this court, “ such order to be made as law and justice may require.”
The petitioner held under a lease certain premises in South Boston upon which it had conducted a' molasses business. On March 5, 1929, it sold to the respondent a part of the business, together with the buildings, structures and equipment previously used by it in that part, and sublet to the respondent for a period ending March 31,. 1932, some of the land previously occupied by it in the conduct of its business. The rent reserved in the lease purports to be for the premises demised with the rights of access and the right to maintain and operate pipes connecting certain tanks with the wharf and with other tanks. The respondent covenanted “ to pay for all charges for gas, water,. electricity or other agency used on the leased premises.” The lease contained a provision for the arbitration of controversies. The petitioner agreed “ to supply steam, compressed air, water, light and other facilities available to it and which may be necessary to the reasonable enjoyment of the premises of the Lessee at the rates to be agreed upon between the parties, or, in the'event of their failure to agree, to be determined by arbitration in accordance with the provision set forth in
On July 15, 1930, an award signed by a majority of the arbitrators was filed, but no judgment has been entered thereon. Majority and minority reports were also filed: The award determined the quantity of steam supplied by the petitioner to the respondent from March 5 to December 31, 1929, and the price to be paid for the same, and established a rate for the steam which should be used- after the latter date. This rate consisted of two parts, a fixed operating cost per month in a stated sum and a coal and water charge. In their report the arbitrators stated ini' some detail the method adopted by them in reaching the conclusions appearing in the-award. The items found by them to enter into fixed operating cost were interest and depreciation, taxes,- fire, boiler and liability insurance; rent, maintenance; repairs, supplies, light, labor and supervision. These fixed costs were found by them to be “ a part of the total cost of producing steam and as they are yearly costs the Arbitrators agree that they should be distributed at an average monthly rate and be a part of the monthly charge for steam in proportion to the relative average’ amounts of steam taken by the users. They are apportioned as a monthly average, instead of a varying
On June 19, 1930, the petitioner filed its petition seeking to have the arbitrators instructed that in determining fixed costs they might have regard to cost of maintaining a constantly available supply of steam and maintaining a steam plant of sufficient capacity to supply the respondent’s intermittent requirements. On August 2, 1930, the respondent filed a cross petition for instructions in which it seeks to have the arbitrators prohibited from including in the fixed costs interest and depreciation on the plant, taxes on the structure, equipment and site, fire, boiler and liability insurance, rent of the site, and maintenance and repairs of the plant.
It appears from an exhibit in the case purporting to be a letter dated September 5, 1930, from the arbitrators who made the award to counsel for the petitioner, that the reasons for the conclusions reached by them were based upon the terms of the lease and the statements accompanying the submission of controversies, and that they felt that in determining rates they could not apportion-the fixed costs of maintaining the steam plant and head of steam on the basis of relative steam capacity requirements of the petitioner and respondent, and that they were bound in determining the rate to apportion against the respondent a part of the fixed costs based only on the amount of steam actually used by the respondent without regard to any part of the fixed costs due to maintaining a constantly available supply of steam or. due to maintaining a steam plant of sufficient capacity to supply the respondent’s intermittent requirements.
The steam used in the conduct of the business retained by the petitioner as well as in the conduct of the business sold to the respondent is generated from a central plant which formerly served the entire business. It consists of
The trial judge granted the petitioner’s requests for rulings' to the effect that the terms of the lease did not prevent the arbitrators in determining rates from considering fixed costs of maintaining and operating the steam plant. He declined to rule that the fixed costs might properly be apportioned on the basis of the relative maximum requirements of the respondent and the petitioner for steam to be supplied by the steam plant of the petitioner, and he also declined to rule that fixed costs based only on the relative amounts of steam used by the petitioner and respondent without reference to the maximum requirements of each do not represent" the
The construction of the lease depends upon the intention of the parties to be ascertained by considering all its terms, giving to the words used the natural and reasonable meaning in the light of the facts to which they apply and the circumstances in which they are used. Grennan v. Murray-Miller Co. 244 Mass. 336. Clark v. State Street Trust Co. 270 Mass. 140, 150, 151. Lovell v. Commonwealth Thread Co. Inc. 272 Mass. 138, 140, 141. Some liberality of construction in favor of a lessee has been suggested in case the terms of a lease are of uncertain or doubtful meaning. Carpenter v. Pocasset Manuf. Co. 180 Mass. 130, 133. Watts v. Bruce, 245 Mass. 531, 534. The term “ cost ” or “ actual cost ” is not a technical one having at all times the same meaning. It is a general or descriptive term which may have varying meanings according to the circumstances in which it is used. In Fillmore v. Johnson, 221 Mass. 406, 412, the court held that upon the facts the actual cost of finishing paper should include
Under the terms of the lease the arbitrators had a right to take into consideration in determining the cost of steam the overhead expenses enumerated in their report. The exclusion of “ executive overhead to the Lessor ” from the “ actual cost ” in defining the limit which the rates by the arbitrators could not exceed by implication suggests that the parties contemplated that other overhead expenses might be included. The case of Stanwood v. Comer, 118 Mass. 54, is not controlling authority to the contrary. The lease there contained no such provision as to executive overhead. It was a lease of part of a building. The owner bound himself to put in “ proper apparatus ” to heat the building by steam. The clause in the lease concerning which the controversy arose was the lessee’s agreement “to pay the proportionate part of the expense of heating ” the building by steam. The court interpreted the covenant to mean that the lessee would contribute his proportion of the actual outlay or expenditure incurred in the current, ordinary and regular supply and management of that apparatus for the general benefit of the tenants, and held that the tenant was not liable for the interest on the cost of the heating apparatus and its appliances, the expense of keeping them in repair and their depreciation in value. The terms of the lease in the case at bar, the subject master to which they apply and the circumstances known to the parties when the lease was executed distinguish this case from that last cited.
It is not entirely clear whether the petitioner’s contention is that the arbitrators should be instructed that in determining rates they may take into consideration the cost of maintenance of a three hundred boiler horse power plant and the steam consumption capacity of the respondent’s machinery, with its potential demands, or
No error appears in the ruling of the trial judge as to the meaning of the lease, and his order instructing the arbitrators in conformity with that ruling is affirmed.
So ordered.