220 Mass. 589 | Mass. | 1915
The demised premises were occupied and used by the defendant for the manufacture and sale of paints, shellac, oils and similar compounds, and the answer of the jury to the third question establishes the fact that the basement and ground floors were in the same general condition at the end as at the beginning of the term.
But in addition to the covenant to maintain “the said premises, including the plumbing, in such repair, order and condition as the same are in at the commencement of said term or may be put in during the continuance thereof,” the lessee further covenanted that it “will at the expiration of this lease remove all rubbish and all goods and effects of itself and of all persons claiming under it,
It is plain that under the first covenant the defendant was bound only to deliver the premises in the same good order and condition as at the date of the lease, reasonable use and wear excepted, and failure to do this would subject the lessee to damages, in a sum sufficient to put them in the required condition. Watriss v. First National Bank of Cambridge, 130 Mass. 343, 345.
The second covenant, however, is not repugnant to the first covenant. The defendant had been in occupation under previous leases during which the deposit on the floors of a thick, irremovable mucilaginous substance had accumulated and the lessee did no more than to covenant to restore the building to a rentable condition. By this construction all parts of the instrument are reconciled and full force and effect given to each covenant. Ferguson v. Union Mutual Life Ins. Co. 187 Mass. 8, 10, and cases cited. Ball v. Wyeth, 8 Allen, 275. Hill v. Hayes, 199 Mass. 411.
The jury having specially found that the lessee at the expiration of the lease failed to leave the premises “clean and in good repair, order and condition in all respects,” the verdict for the defendant was ordered improperly.
If the jury found the covenant to have been broken, the measure of damages was specially submitted to them, in accordance with the plaintiffs’ seventh, tenth and twelfth requests, and their other requests for rulings as to damages, not having been argued, are to be treated as waived.
It follows that, while the exceptions nlust be sustained, a new trial is not called for and the plaintiffs are to have judgment for the amount found by the jury, with interest from the date of the writ. St. 1913, c. 716, § 2.
So ordered.