Dexter v. Manley , 58 Mass. 14 ( 1849 )

Shaw, C. J.

This case comes before the court on exceptions taken by the defendant to the rulings and decisions of the judge, on the trial in the court of common pleas. It is in form an action of covenant, on a lease made by the defendant to the plaintiff of premises, including a shop, with a water power attached, which had been used and appropriated for the manufacture of pails and tubs by machinery carried by water power. The facts appear to have been, that in September, 1846, Dexter, the plaintiff, was the owner of the manufactory in question, with a house and store; that on that day he conveyed the real estate, and made a bill of sale of all the tools and machinery contained in the factory and used in the manufacture of pails, to Manley, the defendant; that, on the same day and as a part of the same transaction, Manley made the lease in question of the house, land, factory, tools and machinery, to hold to the first day of the ensuing month of April; for which, instead of other rent, the plaintiff was to do on the premises certain painting described in the lease. For the course of the trial, and the instructions excepted to, reference is to be had to the bill of exceptions.

The first question is, whether this lease contains an implied covenant for peaceable and quiet enjoyment, there being none in express terms. It is unnecessary to consider whether a covenant would be implied, amounting to a warranty against incumbrances, or a paramount title, or against any rightful claims of third persons; it is sufficient for the present case, that the lease contains an implied covenant, which is a good warranty by the defendant against his own acts. Every grant of any right, interest, or benefit, carries with it an implied undertaking, on the part of the grantor, that the grant is intended to be beneficial; and that so far as he is concerned, he will do no act to interrupt the free and peaceable enjoyment of the thing granted. And we cannot conceive why this is not sufficiently set forth in the declaration. It is sufficient to declare on an instrument according to its legal effect; and if an instrument has a certain legal effect, upon its true and proper construction, such effect may and often must be expressed in terms in the declaration. It is another question, whether this declaration properly alleges special damages; we are inclined to think it does not.

But the main question is upon the terms and construction of the lease ; which not being skilfully drawn, it is difficult to derive from it the true intent and meaning of the parties. The rights which the lessor intended to confer upon the lessee by the demise, and those which he intended to retain to himself by the reservation, must be ascertained by the whole instrument taken together, the deed and bill of sale therein referred to, and the subject matter to which the lease applies.

The lease embraces all the real estate conveyed by the lessee to the lessor on the same day (except the middle south room), and also the machinery, tools and apparatus in the shop, conveyed by the bill of sale from the lessee to the lessor, reserving the right of running a turning lathe and a saw in the room excepted out of the demise. The lessee covenanted to return the tools and apparatus in good order; and, at his own expense, to replace those which should be lost or damaged. In fact, these tools and apparatus were adapted to the fixtures and water wheels, and the wh >le, with the water power, were fitted for the manufacture of pails. In effect, therefore, although the premises leased are not described as a pail factory, yet the lease is of a mill and water power, with tools and machinery, for the manufacture of pails, requiring a certain amount of power, and a mode of using it, understood by the parties. The instrument is to be construed, as far as possible, beneficially for the lessee, so as to enable him to use the premises for the purpose intended. But it must also be construed with a just reference to the exception and reservation, in favor of the lessor, of the use of one turning lathe, and one saw. The latter must necessarily have some limitation, otherwise it might be construed to mean one saw, for the sawing of boards, marble, or granite, absorbing the whole power, and thus be directly repugnant to the grant.

The parties having failed to express themselves more precisely as to this reservation, it must have a reasonable construction, so as to be consistent with the beneficial use of the pail factory by the lessee; and we think the court did not err in directing the jury, that the previous mode oí using the power reserved, in the room excepted, was one means of ascertaining the reasonable limitation of the right thus reserved.

The most questionable point in this part of the charge is, that, under the right reserved to use one saw, the defendant might use three different saws of different sizes, successively, on the same day, if he used only one at a time. This instruction is open to the consideration, that if the defendant were confined to one saw, though he might keep it running the whole of each day, yet in any business which he would be likely to carry on with one saw, it would probably be at rest a part of the time, from which the plaintiff would have a chance of benefit. But, whether this construction was correct or not, it was one which was favorable to the defendant, which he could not object to, and to which he has not taken any exception.

The question was left to the jury, whether the use of the saw, in the manner it was used by the defendant, required more power than that reserved by the lease, construing and explaining the lease as above stated; with the instruction that, if such was the case, then it was a breach of the defendant’s implied covenant; and in this opinion we concur.

Much of the argument of this case turned upon the rule prescribed by the court for the assessment of damages, and the evidence admitted, as offered on the part of the plaintiff. This is not a case, in which the law fixes any precise rule of damages; being a case of partial disturbance and interruption, even if the rent of the premises had been fixed and certain. But in this case, the difficulty is greatly increased. This partial lease of a portion of the premises, for a short period, seems to have been one element in the adjustment of the purchase and sale of the real estate, and of the machinery, tools and personal property; the consideration to be paid for them; the time at which the purchaser should be put in possession ; and in what condition the house should be put and left by painting. Suppose, therefore, that this particular demise had been made on the nominal reservation of the rent of one dollar; it would not be reasonable to hold, that the damages for a disturbance must be limited to one dollar. This was therefore peculiarly a case, where the question was, what direct damage the plaintiff had sustained by it; and it seems to us that there was no error in the court, in admitting the modes of estimating the damage, and the evidence tending to establish some approximation to it, which were allowed in the present case.

We think therefore that the exceptions must be overruled, and judgment entered on the verdict for the plaintiff.

But, upon the question ol costs, the court are of opinion, that the plaintiff can recover no more than one quarter as much costs as damages. This is a special action, brought to recover damages for the breach of a personal contract, in relation to a lease for years, which is a chattel interest. Besides, it nowhere appears by the record that the title to real estate came in question. The question depends on the Rev. Sts. c. 85, § 3, and c. 121, § 3, and is settled by the recent ease of Shurtleff v. Hutchins, 10 Met. 248.

Exceptions overruled.