167 Mass. 465 | Mass. | 1897
The testimony in this case was given in the presence of the court, and was taken down by a commissioner, under the rule. The decree was for the plaintiff. There is no statement of the facts found, or of the rulings made. The decree, therefore, so far as it involves matters of fact, is to stand, unless it appears by the evidence to be clearly erroneous. Wentworth v. S. A. Woods Machine Co. 163 Mass. 28.
The grounds of forfeiture relied on by the defendants are three; namely, the noise, the unworkmanlike character of the work in Head Place,
The way in which the surface of the ground was left in Head Place is also a slight matter, not much insisted on in argument. By request of the defendants’ agent, the plaintiff was hurrying the work there, and his men worked at night. The surface of the ground having been left uneven, the plaintiff promised to have this work properly done. He testified that one of the men promised him to' lay it in the spring, after the frost got out of the ground, and that no complaint had since been made about it. The court might find that this ground of forfeiture was not insisted on by the defendants.
The principal ground relied on by the defendants is the delay in prosecuting the work of fitting up. The stipulations in the lease are as follows: “ The demised premises are to be fitted at the sole cost of the said lessee, and thereafter to be used as a bath establishment for Turkish and other baths, under the limitations hereinafter set forth. The work of fitting up to be begun forthwith, and prosecuted without delay to completion, at such times and in such manner as shall not, by noise or otherwise, interfere with the use of the adjoining property as a theatre, and all changes and alterations to be made in good workmanlike manner.” The lease was dated November 1, 1895, and was to run eighteen years and five months, at an annual rental of fifteen hundred dollars, payable in monthly instalments. The work was in fact begun at once, and there is no complaint that it was not duly prosecuted till after January 15, 1896. The defendants’ entry was on April 3. The stipulation means that
But, even assuming that by reason of the delay the lease was forfeited, there is still the question whether a court of equity can and should grant relief. Upon the evidence, in addition to the matters hereinbefore stated, it might be found that there was no want of good faith on the part of the plaintiff, that his delay was not wilful, that no demand had been made upon him for greater haste, that no notice had been given or complaint made to him on account of his delay, that the lessors had virtually stood by without objection, that no injury resulted to them from the delay, and that, if thej’ had not entered as they did, the work of actually fitting up the premises would at once have been actively resumed. It is true that there was testimony of some informal suggestions made to the plaintiff’s legal counsel with reference to this delay; but the plaintiff denied that any complaint reached him. The purpose of the stipulation requiring the work to be prosecuted without delay appears to have
If the lessee’s failure had been an omission to pay rent promptly as it became due, it is plain that a court of equity-might relieve against a forfeiture on this ground, though the omission was even wilful. But the lessee’s failure in this case was merely an omission to do something promptly which was only useful to the lessors by way of security for the future payments of rent. It was not like a case where the omission caused a present injury or increase of risk to the lessors, as in the cáse of waste, non-repair, or non-insurance.
In such a case, a court of equity is not required to refuse relief against a forfeiture, but may look into the circumstances, and determine whether on the whole it is just and right that such relief should be granted. In Mactier v. Osborn, 146 Mass. 399, a forfeiture incurred by breach of a covenant to insure, caused by accident or mistake, was relieved against. The court said: “ Where there has been a breach of a covenant to pay rent equity will relieve against a forfeiture although the breach is wilful on the part of the lessee; and where there has been a breach of a covenant to perform some collateral duty, such as to repair or insure, which has been caused by accident or mistake, equity will relieve if the lessor can by compensation or otherwise be placed in the same condition as if the breach had not occurred.” The precise question now before us did not arise in that case. The omission in this case is not of the same character as a failure to repair when waste is going on, or to insure. It is merely a failure to pay out money, and is much like an omission to pay taxes, which, in the absence of bad faith, and where the position of the parties has not been changed, and no new rights have intervened, has been held not to bar the
Taking all the circumstances of the present case into account, a court of equity might, without violating any settled rules, grant relief against the forfeiture, if it found that a forfeiture had been incurred. Sanborn v. Woodman, 5 Cush. 36. Atkins v. Chilson, 11 Met. 112, 117. Hagar v. Buck, 44 Vt. 285. Henry v. Tupper, 29 Vt. 358. Sunday Lake Mining Co. v. Wakefield, 72 Wis. 204. Hill v. Barclay, 18 Ves. 56, 58. Story, Eq. Jur. §§ 1314-1323. Decree affirmed.
Head Place is an alley adjoining the side of the building in question.