Whitwell v. Harris

| Mass. | Mar 15, 1871

Ames, J.

The lease, which the defendants have accepted, is liable to forfeiture if they neglect or fail to perform any or either of their covenants ; and one of these covenants is, that they will make “ no alteration or addition in and to the buildings on the premises, or to the premises themselves, without the consent of the lessors being first obtained in writing allowing thereof.” Tho wooden structure, standing upon the back part of the lot of land included in the lease, was placed there by the defendants without such consent; and the only question is, whether in s ) doing they have violated their covenant.

In deciding this question, we think it unimportant whether the structure should or should not be considered as one of those trade fixtures, which, in the absence of any stipulation to the contrary, the tenant might lawfully remove before the expiration of his term. The fact that it could be removed without leaving any permanent traces that it had ever been on the premises does not touch the question. The same thing might perhaps be said of it if it had been built of more permanent materials. It was a building ; and not, as the defendants’ counsel have described it, a mere covered box. If it had been placed there by the owner of the fee, it would have been, in its general character and use, and in the mode of its annexation to the estate, a part of the freehold and realty. It is difficult to see what could be an alteration or addi. tian “ to the premises themselves,” if a new building, of such a description and used in such a manner, was not. Such a building, erected by the tenants without the permission of the lessors, must, under this lease, be considered as an unauthorized addition to and alteration of the premises, and a departure by the lessees from the terms of their lease.

If the condition should appear to be harsh and oppressive, the proper time for them to have made that objection was before they executed and accepted-the lease. We cannot, on that ground, alter the terms of a contract that was fairly and deliberately made, or give it any other construction than such as the natural and obvious meaning of its terms requires.

Judgment for the plaintiffs.