Landlord and Tenant. Garage. Where a lease of a certain building, after using the words "lease" and "demise," describes the leased premises as "the garage" at a certain number on a street named, the lessee covenants to "pay for all gas, electricity, heat and water used by him in conducting the said garage" and the right is given to the lessee "to sublet or sublease the aforesaid premises to [a certain corporation] for garage purposes," these words and phrases do not by implication or otherwise restrict the right of the lessee to use the premises for any lawful purpose, and there is no implied warranty that the premises when leased were or that they will continue to be fit or usable for the purposes of a garage.
In an action on the covenant to pay rent contained in the lease above described it was held that the presiding judge rightly excluded evidence offered by the defendant of police regulations that went into effect about two and a half years after the date of the lease, which made it unlawful to use the leased building for a garage without changes and alterations that would cost between two and three thousand dollars, which the plaintiff refused to make.
PIERCE, J.
The question presented on the report is whether in an action to recover unpaid rent due on a covenant contained in an indenture of lease, evidence should have been admitted that, after the lessee had entered under the lease, the Massachusetts district police under authority of law adopted certain regulations governing the construction and maintenance of garages, compliance with which "necessitated the expenditure of considerable sums of money in the making of changes and alterations to make the demised premises conform thereto."
The contention that the evidence was admissible rests on the assumption that the demise was limited to garage purposes, because it speaks of the leased premises as "The Garage" and because there is excepted from the covenant of the lease not to sublet the right "to sublet or sublease the aforesaid premises to the Western Massachusetts Cadillac Co. for garage purposes." We are of opinion that the partial and restricted release of the covenant of the defendant not to lease or underlet did not by implication destroy or cut down the right (otherwise created by the words "lease" and "demise") to use "The Garage" for any lawful purpose, and that the use of the descriptive words "The Garage" did not raise an implied warranty that the premises were when leased or would continue to be fit or usable for garage or any other purpose. Dutton v. Gerrish, 9 Cush. 89. Taylor v. Finnigan, 189 Mass. 568. Lumiansky v. Tessier, 213 Mass. 182.
The case at bar presents no fact to warrant a finding of actual or constructive expulsion of the lessee from the use and enjoyment of the whole or of any part of the premises by any intentional or wrongful act of the lessor. Bartlett v. Farrington, 120 Mass. 284. Skally v. Shute, 132 Mass. 367. Voss v. Sylvester, 203 Mass. 233, 240. The fact that the premises have remained unoccupied by the lessee since the order of the district police went into effect, does not distinguish the case at bar from the case of Taylor v. Finnigan, supra.
It follows that the evidence was excluded rightly, and that in accordance with the terms of the report judgment is to be entered for the plaintiff in the sum of $227.38 with interest from September 28, 1915.
So ordered.