270 Mass. 403 | Mass. | 1930
This is a petition for the assessment of damages arising out of the taking by eminent domain, by the city of Cambridge, of a strip of land some two hundred fifty-four and one half feet in length and fourteen feet in width. The strip taken was a portion of a large parcel of land situated on Broadway, a public highway in the city
It was not in dispute that the lease from the petitioner to the Banister company was dated August 23, 1923, and covered substantially twenty-seven thousand five hundred eighty-two square feet of land on which there was erected a three-story wooden building, a brick boiler room, a dry-kiln, and the Moodie building. The term was from September 1, 1923, to September 1, 1933, at a monthly rental of $333.33. The lease contained a provision as follows: “and it is also agreed that if the leased premises or any part thereof shall be damaged by fire or other unavoidable casualties, or be taken by action of city or other authorities, so as to be thereby rendered unfit for use and occupation, then and in such case the rent hereinbefore reserved or a just and proportionate part thereof, according to the nature and extent of the injury sustained, shall be abated until the premises shall have been duly repaired and restored; or in case they shall be wholly destroyed, the estate hereby created shall thereupon be determined.”
It was not disputed that the lease from the petitioner to Ginsburg Brothers was dated August 22, 1923, that it covered approximately twenty thousand and nine square feet of land on which stood the Ginsburg building and two
On December 20, 1923, Ginsburg Brothers executed a lease with the Quality Paper Box Co. by the terms of which the two upper floors in the Ginsburg building were sublet for a term of nine years and seven months, expiring on August 31, 1933, at a yearly rental of $4,400, for the first five years of said term, and the sum of $4,500 for the remainder thereof. This lease provided as follows: “and in case of such destruction or damage, or a like destruction or damage by any taking or appropriation by public authorities for public uses, then the lessors, their heirs or assigns, may terminate this lease.” “Ginsburg Brothers as lessor have not terminated this lease because of said taking.”
It was agreed at the trial that the leases to the A. W. Banister Co. and to Ginsburg Brothers, and the sublease to the Quality Paper Box Co. had six and one third years to run from the date of the taking.
The case was submitted to the jury upon instructions by the judge to which no exceptions were taken. The jury returned a verdict, in effect, that the Harvard Trust Company, trustee, sustained damages as the result of the taking by eminent domain by the city of Cambridge in the sum of $54,453.75, “(estimating the same as an entire estate and as if it were the sole property of one owner in fee simple)”; and that each lessee and sublessee who brought an intervening petition has “not sustained damage” and was “awarded no damages.” The findings of the jury were “Returned and affirmed in court” on January 30, 1929.
At the trial the intervening petitioners seasonably saved certain exceptions to questions on cross-examination by counsel of the petitioner; and each intervening petitioner seasonably filed a motion for a new trial upon the ground that the verdict is against the law, the evidence and the great weight of the evidence. The motions were denied.
During the trial Samuel L. Ginsburg, one of the Ginsburg Brothers, testified to the value of the partnership leasehold interest in the condemned property and was asked in cross-examination by counsel for the Harvard Trust Company, trustee, “Now then, you have not paid any rent at all to the Harvard Trust Company, have you, from the time you got out?” and subject to the exception of the intervenors was permitted to answer, “No.” The intervenors put their objection to the admission of the answer to the question upon the ground that the lease contains no provision for its termination in case of a partial taking; that the payment of rent or the refusal to pay rent after the taking was a question between the Harvard Trust Company and them and had nothing to do with the plaintiff’s right to recover the reduction in value of its estate due to the partial taking. It is plain from the record that the presiding judge when he admitted the question and answer momentarily overlooked the rule that the construction of an unambiguous written instrument is for the judge, and assumed that the conduct of the intervenors after the taking was evidence for the jury upon an issue as to whether their conduct was an admission that the leases were terminated by the taking. This view of the law was error. Munigle v. Boston, 3 Allen, 230. Goodyear Shoe Machinery Co. v. Boston Terminal Co. 176 Mass. 115, 116.
The intervenors, however, suffered no harm, for the reason that the jury were instructed: “The provision in this petitioner’s lease that if 'the leased premises or any part thereof shall be taken by the action of the city or other authorities, so as to be thereby rendered unfit for use and occupation, then and in such case the rent hereinbefore reserved, or a just and proportionate part thereof, accord
The second exception was to evidence admitted in the course of the cross-examination of one Gilbert, a real estate expert, called by the interveners. He had testified to the value of the various leasehold interests before and after the taking, and on cross-examination was asked by the counsel for the trust company: “Now then, if you are going to give the Quality Paper Box Co. $11,064.28 for the same space, how is it fair to give the Ginsburg company $28,361.61 for the very same space?” and subject to the exception of the interveners was permitted by the presiding judge to answer: “The only way I think I can answer that is, that I consider the value of the leasehold
The third exception is argued in the brief of the intervenors on the theory that they are entitled to have a new trial because the verdict on its face is erroneous as matter of law. It is contended in support of this position that the jury went on an hypothesis as to the law governing the case, which was given them by the judge and which was erroneous. Assuming the position to be sound, of which we express no opinion, “a party cannot as matter of right raise a question of law on a motion to set aside the verdict and grant a new trial, which might have been raised before verdict. While a judge may in his discretion permit such a question to be presented on a motion for a new trial, he cannot be required to consider it.” Lonergan v. American Railway Express Co. 250 Mass. 30, 38. Ryan v. Hickey, 240 Mass. 46. Commonwealth v. Dascalakis, 246 Mass. 12, 24. Manifestly all points here taken by the intervenors could have been presented by the intervenors through appropriate requests for instruc
It results that each of the several exceptions is overruled.
Exceptions overruled.