| Mass. | Jan 4, 1918
Without a report of the evidence these cases are before us on appeal from a final decree in favor of the defendant in the first suit and against the defendants in the second suit in accordance with a finding of facts made by the trial judge.
On the facts found by the trial judge, the Marion Street Garage . Company completely failed to prove at the hearing that it was engaged in a public garage business at 39 Marion Street, Brook-line, at the time it charged Sugden with an interference with its business in the manner and form set out in its bill and in the several amendments thereto. The absence of proof of this fundamental and foundational fact necessitated the dismissal of the bill.
As regards the suit of Sugden against the Marion Street Garage Company the only question open is whether the decree conforms to the allegations of the bill and lawfully could be entered on the facts found. Gordon v. Borans, 222 Mass. 166" court="Mass." date_filed="1915-10-25" href="https://app.midpage.ai/document/gordon-v-borans-6433297?utm_source=webapp" opinion_id="6433297">222 Mass. 166.
The facts stated in the bill, which are either admitted by the answer or found to be true by the trial judge, in substance are as follows: Walter J. Sugden on or about May 15, 1915, purchased of one Davis the business of a public garage. The property acquired consisted of the good will of a long established business and divers chattels used in and appurtenant to the business sold. Coincident with the purchase and sale of the business, Davis, who owned the real estate upon which the garage was located, executed a lease of the garage to Sugden for a term of ten years. The lease contained a covenant not to assign or underlet the premises without the consent in writing of Davis. On or about June 1, 1916, the defendant Carpenter purchased of Sugden the good will of the garage business and certain personal property for $12,500, paying Sugden $5,000 on account of the purchase price and executing and delivering his "promissory note for the balance, secured by a mortgage of the good will and other property sold. Coincident with the purchase by Carpenter of the property and business, Sugden executed and delivered to Carpenter a written lease of the premises “for the Term of Nine (9) years beginning with the Fifteenth day of May A. D. 1916.” Davis gave his written consent to Sugden in terms as follows: “Boston, June 8, 1916. Permission is hereby given Walter J. Sugden to underlet the premises described in a lease dated fifteenth day of May,
On June 12, 1916, a charter was issued to a corporation under the name and style of the Marion Street Garage Company. This corporation had a nominal capital of $15,000 with fifteen hundred shares at $10 each. It was created to take over the personal property, machinery, automobiles and good will of the business of the garage then owned by Carpenter under purchase from Sugden, and to allow itself to be used by Carpenter as a means of carrying on his own business. No money was ever paid by the corporation to Carpenter and the only money paid to any one was the $5,000 paid to Sugden by Carpenter, which he received in part from an employee, in part from a brother^ and the balance from his wife.
Sometime after receiving the lease, Carpenter wrote on the back of it as follows: “Brookline, July 6th, 1916. In consideration of one dollar and other and valuable considerations I hereby transfer and assign and set over all of my right, title and interest to the within lease from Walter J. Sugden to Fred A. Carpenter, Atty. to The Marion Street Garage Co. Corporation Fred A. Carpenter Atty. (Seal.) ”
The trial judge refused to find and rule that Sugden consented to the last named assignment, that he waived the condition not to assign or that he was estopped from asserting any breach of the condition not to assign; and specifically and affirmatively found: “No consent ... to the assignment, no waiver of the condition . . . against assigning and no facts which should estop him from asserting a breach of that condition or covenant.”
No notice was given to Sugden or Davis of the assignment by Carpenter to the Marion Street Garage Company. Sugden did
The lease from Davis to Sugden provided that "until further notice from the lessor rent shall be paid to the Cambridge Trust Co.” For August, 1916, and thereafter, the rent was paid monthly to the Cambridge Trust Company by checks which had printed on the left hand margin the words “Marion Street Garage Co,” and at the bottom “Marion Street Garage Co . . . Mgr.,” a blank space being left for the written signature of F. A. Carpenter. It is the contention of the defendant that the lease given it was an assignment and not an underlease, and that Davis had accepted it as tenant by reason of the acceptance of the rent paid to the Cambridge Trust Company. The trial judge refused so to rule and it cannot be said he was clearly wrong in view of all the facts, and more particularly, because of the doubt expressed by the judge as to whether the lease ever was delivered to the corporation. In these circumstances the defendants were estopped to deny the title of Sugden or of his right to make the lease, under which Carpenter entered. It follows that Sugden legally could determine the lease by entry for breach of the covenant of Carpenter not to assign.
On December 1, 1916, Sugden made an open, peaceable and unopposed entry upon the premises for the purpose of terminating the lease for breach of condition thereof. Keepers placed in charge of the premises were assaulted and forcibly ejected therefrom by the defendants Kaine and Roberts. The defendants admit default on the mortgage note in that the sums to be paid were not paid and the property was not insured against fire for the benefit of the mortgagee. On December 4, 1916, Sugden took possession of all the property described in the mortgage which was then upon the premises for breach of condition thereof, and placed it in the custody of keepers. On the same day the defendants Kaine, Carpenter and Roberts, assaulted the keepers, took from them the property described in the mortgage and forcibly ejected them from the premises; and have since retained possession of the premises and property through show of force and threat of violence.
The entry in each case must be
Decree affirmed with costs.