320 Mass. 144 | Mass. | 1946
The defendants appeal from a final decree granting relief to the plaintiff against forfeiture for breach of condition of two leases on adjoining premises in Somerville.
The evidence is reported.
On June 29,1944, the plaintiff was the holder of the leases, in which the defendant Hawkins-Washington Realty Co., Inc., hereinafter called the realty company, was the lessor. The premises were actually occupied by the defendant Finley Wood Products, Inc., as a wood working establishment. This defendant had been incorporated at the instance of the individual defendant Finley, who was its president and treasurer. Finley Wood Products, Inc., had been paying to the plaintiff monthly a sum substantially greater than the total monthly rent under the leases held by the plaintiff. These payments were to be made until certain pending litigation involving the machinery and personal property on the premises should be terminated. The defendants contend that these monthly payments were rent; that Finley Wood Products, Inc., was a subtenant of the plaintiff; and that the subletting of the premises by the plaintiff to Finley Wood Products, Inc., was a breach of the covenants against underletting contained in the leases which the plaintiff held from the realty company. The plaintiff contends that Finley Wood Products, Inc., was not a subtenant but was a tenant - at sufferance only, or a mere trespasser, and that the sums' payable monthly by it to the plaintiff were paid for “use and occupation” under an “arrangement” between the parties which did not constitute a subtenancy. It is unnecessary to resolve this controversy, since the judge justifiably found that the realty company had waived any breach of the covenants against underletting by accepting from the plaintiff, with knowledge of the facts and without reservation, rent accruing thereafter. Nelson Theatre Co. v. Nelson, 216 Mass. 30, 34. Saxeney v. Panis, 239 Mass. 207, 210.
The plaintiff had, however, before June 29, 1944, committed breaches of other covenants of the leases by failing to carry boiler insurance since December 30, 1943, and by allowing unpaid water bills-to accumulate since the last.
The judge found that the breach of covenant in failing to carry boiler insurance was due to an oversight; that the insurance agent had been instructed to renew the policy; that this was not done; that the plaintiff did not discover the omission until August; and that the realty company suffered no injury thereby. He found that the evidence was not clear as to why the plaintiff had failed to pay the water bills; that her failure was not wilful; that upon discovering that these bills had not been paid she immediately took up the matter with the realty company and offered to reimburse the company; and that the failure to pay the water bills was not intentional on the part of the plaintiff. If we assume that these findings are supported by the evidence, nevertheless it remains true that as early as some time in May, weeks before the entry, the plaintiff, through her husband as her agent, knew of the unpaid water bills and has
The trial judge was of opinion that the realty company should not be allowed to terminate the leases for these breaches, and that equity would intervene to prevent the forfeiture. Atkins v. Chilson, 11 Met. 112. But whether equity should intervene must in this case be decided in the light of the additional circumstance that the realty company has changed its position by giving the new lease to Finley. At law the realty company had a perfect right to enter and to terminate the plaintiff’s leases and thereupon to give the new lease. There is nothing to show that either the realty company or Finley had any knowledge that the plaintiff’s breaches were inadvertent or such that some court of equity would hold them excusable. The plaintiff’s ‘' offer,” or rather promise, to pay the water bills, not followed by any affirmative action at any time, while the shutting off of the water remained imminent because of the accumulation of nearly two years’ bills, would hardly serve to notify the realty company that the failure to pay was inadvertent or accidental. So far as appears the realty company acted in entire good faith in accordance with its legal rights. It may not have been displeased at the prospect of eliminating the plaintiff’s leases and securing the larger rent for itself, but this is immaterial. It has now assumed contractual obligations in connection with its new lease to Finley. If the plaintiff’s leases were restored and the plaintiff herself were to take possession, the realty company would be hable to Finley on the implied covenant of quiet enjoyment in the new lease from the realty company to Finley. See Foster v. Peyser, 9 Cush. 242, 246; Duncklee v. Webber, 151 Mass. 408; William A. Doe Co. v. Boston, 262 Mass. 458, 460-461; H. W. Robinson Carpet Co. v. Fletcher, 315 Mass. 350, 353; Tinkham v. Wind, 319 Mass. 158, 159; Holbrook v. Young, 108 Mass. 83; Casassa v. Smith, 206 Mass. 69. If the plaintiff were to allow Finley to remain in possession under the alleged “arrangement” at the same rental, the “arrangement” would expire at least as soon as the litigation above mentioned comes to an end. If the “arrange
The final decree is reversed, and a new final decree is to be entered dismissing the bill with costs. An appeal by the defendant Finley Wood Products, Inc., from an interlocutory decree denying its motion that the case be 'reopened for further evidence has become immaterial and is dismissed. :
. So ordered-'. ,.