Landlord and Tenant, Covenants in lease. Contract, Construction. Practice, Civil, New trial. Supreme Judicial Court.
A covenant in a lease to a manufacturer of paints, shellac and oils, which he mixed and kept in the basement of the leased premises, that the lessee "will at the expiration of this lease remove all rubbish . . . and peacefully yield up . . . the premises . . . clean and in good repair, order and condition in all respects," is not repugnant to another covenant preceding it in the same lease, that the lessee will maintain the premises "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," and, if at the end of the term the floors of the leased premises are covered with a thick, irremovable, mucilaginous deposit that had accumulated during the terms of previous leases to the same lessee and was there at the beginning of this term, the lessee on giving up the premises is liable for the cost of putting the floors in good order and condition.
Where in an action of contract, at the trial of which the presiding judge ordered a verdict for the defendant, exceptions alleged by the plaintiff are sustained by this court, and it appears by the bill of exceptions that, under the instructions of the judge and the answers returned by the jury to questions put to them by him, the damages which the plaintiff is entitled to recover have been assessed by the jury, there is no occasion for a new trial, and under St. 1913, c. 716, § 2, an order will be made for the entry of a judgment for the plaintiff in the sum found by the jury.
BRALEY, J.
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, and peacefully yield up to the lessors, or to those having their estate therein, the premises and all erections and additions made to or upon the same, clean and in good repair, order and condition in all respects."
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 must 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.