259 Mass. 379 | Mass. | 1927
The plaintiff was injured by a fall caused by the tipping of the cover of a coal hole in the sidewalk adjoining premises numbered 1071 on Washington Street, in Boston. She brought separate actions against the city of Boston; against Mrs. Rosenfield, the owner of the premises; and against the defendant Rubin, lessee of part of the premises. The actions were tried together to a jury. Verdicts were found for the plaintiff against the owner and the lessee, and for the defendant city of Boston. This case is before us upon a bill of exceptions claimed by the lessee, in which he presents for determination whether the judge was right in ruling that the lessee was in control of the coal hole, and agrees that “if the judge was correct in ruling as a matter of law that the coal hole and cover were in the control of the defendant under the lease, there was sufficient evidence on other aspects of the case to warrant a verdict for the plaintiff.”
Number 1071 Washington Street was a three-story and basement building. The street floor was taken up by a store and a hallway entrance to the basement and the two upper stories. Stairways in this hallway extended from the basement to the third floor. On each floor a door opened into the hallway. The basement extended under the sidewalk. In it was the furnace, which heated the entire building. The coal hole was in front of the furnace, and coal which came
Mrs. Rosenfield, by indenture of lease dated March 19, 1923, demised to Rubin for a term of five years from June 1, 1923, “Store numbered 1071 Washington Street, Boston, and part of basement to be used for sale of cloaks and suits and for no other purpose, which may include ladies’ wearing apparel.” The instrument continued: “It is hereby agreed that the said lessee will furnish heat for the whole building and that'he will keep the whole building properly heated and comfortable for the use of all tenants, and that the lessor will contribute towards heating the said building fifteen (15) tons of coal each and every year. In addition thereto the said lessee agrees that he will keep the cellar clear from any and all rubbish..... It is further agreed that the said Lessee will furnish heat from October first until May first, each and every year.” The other parts of the lease material to this controversy are as follows: The lessee covenanted that he “will keep . . . said premises in such repair, order and condition as same are in at the commencement of said term, or may be put in during the continuance thereof . . . will save the Lessor harmless from . . . any claim or damage arising from neglect in not removing snow and ice from the roof of the building, or from the sidewalks bordering upon the premises so leased, or by any nuisance made or suffered on the premises . . . will hold the Lessor harmless and indemnified against any injury, loss or damage to any person or property on said premises . . . and the Lessor or her agents may . . . make repairs and alterations if she should elect so to do . . . .”
He took possession June 29, 1923. He did nothing about the furnace or coal before the accident which happened on October 9, 1923. Frequent complaints were made to him before October 9, about the cover of the coal hole. He testified, and Mrs. Rosenfield and her husband, who acted as her agent, both denied, that before October 9, he spoke of these to the lessor and that she promised to fix it. There was no contradiction that before the letting the annual coal consumption was discussed. On October 9, coal was put
There is no ambiguity in the language of the lease. The defendant contends that it is so indefinite with regard to the basement that no demise of the basement can be found. We cannot yield to this contention. It is too plain to require argument that Rubin was given a present right in the basement and by his agreement to heat, undertook control of the furnace and of the appliances for the supply of coal. The lessor was bound to pay for, or to furnish, fifteen tons of coal; but there is nothing to indicate that she retained any control of basement or sidewalk.
The construction of the written contract was for the judge. There is nothing in the other testimony admissible to control his ruling as matter of law. Menage v. Rosenthal, 175 Mass. 358.
The case falls within the principle illustrated by Wixon v. Bruce, 187 Mass. 232, and Appleton v. O’Donnell, 173 Mass. 398.
Exceptions overruled.
