Cumings v. Hackett, 98 Mass. 51

Cumings v. Hackett

98 Mass. 51 | Mass. | 1867

Gray, J.

The words and order of the clauses, the nature and manifest purpose of the instrument, and the relations of the parties at the time of its execution, all tend to show that Traip’s right of termination by giving six months’ notice was limited to the lease, contained in the first part of the instrument, for a term of five years from its date, and did not apply to the subsequent covenant for an additional term after his death.

The right reserved is “to terminate this lease,” and is inserted between the lessor’s words of demise, and the tenant’s promise to pay rent and to lodge and board his landlord during the first term. The only “ lease,” or present demise of an estate, was that contained in the first part of the instrument. The covenant in the latter part was but an executory agreement for the creation of a further term by the lessor or his representatives in the future. Weld v. Traip, 14 Gray, 330. The lessee, during the first term, was to pay a certain rent in money, and to provide a home for his landlord on the premises; but during the second term he might either use the whole premises himself or underlet them for his own benefit, and was to pay nothing by way of rent beyond the amount of taxes and insurance. The real consideration for the lessor’s final covenant manifestly was the ar ■ rangement made in the previous clauses for his own accommo dation and convenience ; and a right to absolve himself or hia *55representatives from this covenant, after receiving all the benefit which he wished from the provisions in his own favor, is not to be inferred. When the instrument was executed, the parties had long been friends, the plaintiff had a family, Traip had none, and was an invalid, and might naturally wish at once to benefit his friend, and to secure a home for himself; and neither Traip nor his administrator can be allowed, after the unexpectec recovery of his health and change in his circumstances, to exercise any right, not distinctly reserved in the instrument, of revoking the covenant which, when sick and in need of care, he had made with the plaintiff.

According to the agreement of the parties the case is to stand for trial to assess the damages for the breach of the defendant’s covenant.