238 Mass. 164 | Mass. | 1921
This is a bill in equity brought to enforce specific performance of an agreement contained in a written lease of real estate, situated on Washington Street in Boston, and given by the defendant Peabody to the plaintiff. The term of thex lease was for five years from the first day of January, 1916, and contains, among others, the following provisions:
“And Whereas it is the intent of the Lessee, with the consent of the Lessor, forthwith to make various improvements and alterations in and to the leased premises at his own expense;
And Whereas the Lessor hereby reserves the right at any time after the expiration of one year of the term hereof, for the purpose of a sale of the premises, to terminate this Lease by giving to the Lessee sixty days’ written notice of his intentions so to do; . . . and it is further mutually agreed that if and when the Lessor shall have any offer for the purchase of said premises which he is willing to accept, he will, prior to accepting the same,*167 give the Lessee an opportunity to purchase the premises by notifying him in writing of such offer, and giving him seven days thereafter in which himself to make a better offer than the one so received.”
The provisions of the lease above recited and upon which the rights of the parties depend are plain and free from ambiguity.
The case is governed in principle by the decision in Callaghan v. Hawkes, 121 Mass. 298, which is decisive of the rights of the parties. The pertinent clauses in the lease there involved were in these words: “And the said Hawkes shall have the right to sell and dispose of the farm and buildings at any time covered by this lease, by giving said Callaghans two months’ notice thereof, and also by giving them the privilege of purchasing at the same price any other person may offer.” “And said Callaghans, in event of a sale of the property herein leased, shall have the privilege of taking off the crops.” Chief Justice Gray, who wrote the opinion, speaking for the court said: “The clause in question, in form and necessary legal construction, is enabling and not restrictive, and confers upon the lessor a right which he would not otherwise have had. Independently of, and notwithstanding this clause, he may sell the reversion. The whole effect of the clause was to enable him to terminate the lease, and sell the whole estate, first giving the lessees the opportunity of purchasing. This construction is fortified by the final clause, which allows to the lessees, in case of sale, the privilege of taking off the crops.”
The cases of Blanchard v. Ames, 60 N. H. 404, De Vitt v. Kaufman County, 27 Tex. Civ. App. 332, and Foley v. Constantino, 86 N. Y. Supp. 780, are in accord with Callaghan v. Hawkes. See cases cited in note L. R. A. 1915 C 236, 237, 238. The demurrers were properly sustained, accordingly the entry must be
Decree affirmed.