138 Mass. 363 | Mass. | 1885
The plaintiff does not now contend that he can recover under his second count for use and occupation. It is clear that he cannot, as the only liability of the defendant, if any, is under a written lease under seal. Warren v. Ferdinand,
The question whether there is such an implied covenant in the lease depends, like other questions of the construction of contracts, upon the intentions of the parties. Baron Parke thus states the rule of law upon this subject: “ No precise words are necessary to constitute a covenant; provided we are able to collect an agreement by the parties that a certain thing shall be done, that will be sufficient to enable us to say that a covenant is created. But we must be satisfied that the language does not merely show that the parties contemplated that the thing might be done, but it must amount to a binding agreement upon them that the thing shall be done.” James v. Cochrane, 7 Exch. 170; S. C. 8 Exch. 556. When parties have entered into an engagement with express stipulations, the presumption is that they have expressed all the conditions by which
Applying these principles to the case at bar, we are of opinion that no implied covenant such as the plaintiff contends for can be created by construction. The premises leased were not a brick yard in operation, equipped for work, but barren, unoccupied land. The parties did not know the amount of clay on the land, nor whether brick could be made on the land at a profit; for the lease contains a clause, that, if the clay on the premises should be exhausted before the lease expired, the lessee might use adjoining land to procure clay. The lease, applied to the subject matter, furnishes indications that the parties regarded the enterprise as experimental, and that any stipulation binding the lessee to work the yard was purposely omitted. This view is fortified by the phraseology of the supplemental agreement upon which the plaintiff relies. In that he agrees with the assignee, “ that, if he shall take an assignment of the lease aforesaid and proceed to manufacture bricks upon the premises covered thereby, then I will receive as rent .... twenty cents for each thousand bricks manufactured;” and “if clay pipe is manufactured upon the said premises, or if any other articles are manufactured from the clay thereon,” the rent shall be determined in a manner which is stated. This tends to show that * the parties did not have m their minds an established business, certain to be carried on, but that the use of the land and whether brick or other articles could be manufactured were regarded as experimental and doubtful. The more reasonable implication seems to us to be that it was the understanding of the parties that the lessor took the risk of the lessee’s manufacturing brick, and intended to make the rent dependent upon the success of an experiment. We are therefore of opinion that the plaintiff cannot maintain this action. ‘ Exceptions overruled.