260 Mass. 519 | Mass. | 1927
This is an action by a lessor against a lessee under a written lease to recover loss suffered in consequence of a breach of the terms of the lease, under a provision that, if the lessee failed to perform any of its covenants, the lessor might reenter as of his former estate and' determine the lease, and that in case of such determination, the lessee should be liable to the lessor “for all loss and damages sustained by the Lessor on account of the premises remaining unleased or being let for the remainder of the term for a less rent than herein reserved.” ■ -
The contentions of the defendant are, that it was not liable upon the facts. The plaintiff contends that he is entitled to recover for certain items not allowed by the judge. The case is before us upon a report after trial to a jury.
The lease, which was in printed form, contained this typewritten clause inserted before the habendum: "The Lessee agrees to place in the hands of the Lessor $1,083.33 on or before December 1st, 1920, said $1,083.33 shall be held by the lessor during the full term of the lease as a guarantee of the fulfillment of the terms of the lease by the lessees and is to remain the lessor’s in case of failure of the lessees to live up to said terms and covenants.” The amount, $1,083.33, equals one month’s rent.
The defendant contends that this clause is an agreement for security for all losses sustained from nonfulfilment of the lease, which rendered the later printed covenant, quoted above, nugatory; and that as the plaintiff has admittedly retained the $1,083.33, a verdict should have been directed in its favor upon its motion therefor. The contention is not sound. Where both written and printed clauses in a lease can stand together they are to be so interpreted as to give force to both. If they cannot, then the written matter controls. Ball v. Wyeth, 8 Allen, 275. It is manifest that the amount deposited was security, that the two provisions can stand, and that the defendant receives all it is entitled to if the deposit is credited upon any amount for which it is indebted. The refusal to direct the verdict was right. Reed v. Bristol County Realty Co. Inc. 250 Mass. 284. Cotting v. Hooper, Lewis & Co. Inc. 220 Mass. 273.
The plaintiff, however, is entitled to recover the reduction in rent suffered in August, September and October, 1923, in order to retain the tenant, which induced him to continue in possession when, but for the allowance made, he would have exercised his right to quit. The action taken was of advantage alike to the original lessor and lessee. See Woodbury v. Sparrell Print, supra.
We need not consider the ruling on the exclusion of evidence offered by the plaintiff. He has not been prejudiced.
It follows that in accord with the terms of the report, the verdict for the plaintiff is to be increased by $249.99, the amount of the allowances in rent in August, September and October, 1923, with appropriate interest, and judgment is to be entered for the plaintiff on the verdict as so increased.
So ordered.