Taylor v. Finnigan , 189 Mass. 568 ( 1905 )

Braley, J.

By the terms of the lease there was no implied warranty that the building leased was fitted for occupation as a. theatre, or for any particular use, and the lessee was at liberty to occupy the estate for the pursuit of any lawful business. Dutton v. Gerrish, 9 Cush. 89. Stevens v. Pierce, 151 Mass. 207. He chose to conduct a place of amusement for the public, and his occupation and enjoyment of the demised premises has. continued without interference by any wrongful act of the plaintiff. Unless the allegations contained in the answer, and which for the purposes of this case are admitted by the demurrer to be; true, entitle the defendant to be absolutely relieved, he must beheld liable for the accrued rent.

There having been no tortious entry or physical ouster by the-landlord, the tenant contends that by an order issued under the-provisions of R. L. c. 104, §§ 36, 55, to furnish “ additional means of egress for the use of occupants in case of fire or panic,” as the-premises were thereby rendered useless, a constructive eviction was wrought.

Ho covenant appears in the lease as originally executed requiring the plaintiff to provide adequate facilities of entrance and of exit to the leased property even though these changes were required of the lessee under R. L. c. 104, § 36, and there having been no interruption by him of the peaceable possession and beneficial use of the property by the defendant, the latter cannot in an action for the rent recoup damages he may have suffered) by reason of the order of the inspector. Bartlett v. Farrington, 120 Mass. 284.

Having remained in occupation of the estate, the defendant’s obligation under'his covenant to pay rent is absolute, except so far as it may have been suspended by a breach on the part of the plaintiff of his covenant, that if the lessee pays the rent he “ shall peaceably hold and enjoy the said rented premises without hindrance or interruption by the said lessor, or any person or persons whomsoever.”

The lessor, however, did not engage to make even ordinary repairs, or to maintain the property in suitable condition for use and habitation as it was in at the date of the lease, and if the construction of additional exits was called for to make the building safe for the use of those attending the theatrical performances, and such alterations rightfully could be classed as repairs, the plaintiff was under no obligation to make them as this burden was cast upon the lessee, and a failure to do so did not constitute a breach of the covenant for quiet enjoyment. Roth v. Adams, 185 Mass. 341.

To constitute a constructive eviction which while it continues suspends the payment of rent it must affirmatively appear that by his intentional and wrongful act the landlord has deprived the tenant of the beneficial use and enjoyment of the whole, or a part of the leasehold. Royce v. Guggenheim, 106 Mass. 201. De Witt v. Pierson, 112 Mass. 8. Colburn v. Morrill, 117 Mass. 262. Mirick v. Hoppin, 118 Mass. 582. Bartlett v. Farrington, 120 Mass. 284. Skally v. Shute, 132 Mass. 367. Smith v. McEnany, 170 Mass. 26.

But the answer does not allege that the action of the inspector of public buildings was induced or incited by the plaintiff, and if in the exercise of the police power extraordinary restrictions were imposed upon the use of the property there was no voluntary unnecessary act on the part of the landlord that tended to deprive the tenant of the premises, and which would bring the case within Kansas Investment Co. v. Carter, 160 Mass. 421; or Grabenhorst v. Nicodemus, 42 Md. 236.

The defendant moreover did not abandon the premises, but remained in occupation, and if the lessor had taken such action his conduct therefore would have been no defence to a suit for the rent. Boston & Worcester Railroad v. Ripley, 13 Allen, 421. International Trust Co. v. Schumann, 158 Mass. 287, 291.

A further allegation is found that the designated changes could not be made without causing structural alterations outside of that portion of the building covered by the lease, but there is no averment that upon request the plaintiff refused his assent to such repairs being undertaken by the defendant so far as they might be required to enable him to comply with the order. Upon making such a request if it had been refused, and this action was found to have been taken solely for the purpose of preventing the defendant from realizing the full beneficial use and enjoyment of the estate, whether he could have quitted the premises and treated this refusal as a constructive eviction it is not necessary to decide. See Sherman v. Williams, 113 Mass. 481; Skally v. Shute, ubi supra; Kansas Investment Co. v. Carter, ubi supra; International Trust Co. v. Schumann, ubi supra.

We now come to the verbal agreement by which the plaintiff is said to have engaged to make the alterations.

While it may be said that the requirement which supports this promise rests upon a possible statutory liability which the defendant should have foreseen, and stipulated against, yet if not actually contemplated by the parties at the date of the lease, and hence forming no inducement for its execution by the lessee, he may show such an oral modification. Durkin v. Cobleigh, 156 Mass. 108, 109. Rackemann v. Riverbank Improvement Co. 167 Mass. 1. Emerson v. Slater, 22 How. 28. Witbeck v. Waine, 16 N. Y. 532. Compare McGlynn v. Brock, 111 Mass. 219. For this agreement, if founded upon a good consideration, would be valid and enforceable. Rich v. Jackson, 4 Bro. Ch. 514. Hastings v. Lovejoy, 140 Mass. 261, 265. Thomas v. Barnes, 156 Mass. 581. See Vass v. Wales, 129 Mass. 38.

If under it the defendant had gone forward either with, or, after reasonable notice, without, the assent of the plaintiff he could have recovered the expense incurred in adapting the building to meet the demand of the inspector, as the lessor would have been benefited by the enhanced value of the freehold. Myers v. Burns, 35 N. Y. 269. Cornell v. Vanartsdalen, 4 Penn. St. 364. Hayward v. Leonard, 7 Pick. 181.

It is equally plain that the benefit to the leasehold estate for the remainder of the term was sufficient to support the promise on the part of the lessor. Hastings v. Lovejoy, ubi supra. Emerson v. Slater, ubi supra. Or it might be said that the lease as modified by the oral agreement constituted a substituted contract supported by the original consideration. Thomas v. Barnes, ubi supra.

Under a broad interpretation that the lease as thus amended demised a building to be used for the purposes of a theatre, in connection with which the plaintiff covenanted to provide additional means of exit if called for by the public authorities, a failure to perform the promise does not constitute a defence to this action.

When considered as a further covenant this agreement is strictly analogous to the ordinary undertaking of the landlord to make outside repairs, which is independent of the lessee’s obligation to pay the rent reserved, and any neglect by the plaintiff to make the improvements promised, even if by force of the statute the premises without them became unfitted for use as a theatre, did not by reason of the breach so long as the defendant chose to occupy them, give to him any right to decline payment of the rent. Kramer v. Cook, 7 Gray, 550. Leavitt v. Fletcher, 10 Allen, 119, 121. Royce v. Guggenheim, ubi supra. Skally v. Shute, ubi supra. His remedy would be by an independent suit for damages, or when sued for the rent, by a counter claim in recoupment, which he has not pleaded. Holbrook v. Young, 108 Mass. 83, 85. See Brown v. Holyoke Water Power Co. 152 Mass. 463.

Under the pleadings this conclusion follows even if the defendant has failed to aver that the building was constructed after the passage of St. 1894, c. 382, the provisions of which were made applicable only to buildings thereafter erected for use as a theatre, and we are not called upon to decide whether the omission from R. L. c. 104, § 36, of the express words of limitation as to the time of erection found in the original statute indicates a legislative intention to put all buildings, whenever erected, and used in whole or in part for this purpose, on the same footing.

Judgment affirmed.