Cawley v. Jean , 218 Mass. 263 ( 1914 )

Rtjgg, C. J.

This is an action of contract in which the plaintiff seeks to recover damages for an alleged breach by the defendant of certain covenants contained in a written lease between the parties, for a term to begin on October 21, 1901, and bearing that date but in fact executed on March 8, 1902.

The first point to be determined is the date to which the words “as the same now are” in that part of the covenant which requires the lessee to deliver up the premises at the end of the term in “as good order and condition ... as the same now are,” refer, that is, whether they refer to the time when they were in fact used on March 8, 1902, after changes and alterations had been made, or refer to the date named in the lease which is also the beginning of the term, October 21, 1901, before the alterations and changes were made. It is familiar law that, when parties have put their contract in writing, all previous or contemporary oral negotiations are merged in the written instrument, which conclusively is presumed to express the bargain made. This is not only a rule of evidence, but is founded upon the substantive rights of the parties. If the terms of the agreement are ambiguous, or the sense of a word employed is obscure, oral evidence is admissible to show all the circumstances attending the transaction in order that the writing may be interpreted in the light of the situation of the parties at the time it was made. But, where there is no uncertainty about the instrument, oral evidence is not admissible. Butterick Publishing Co. v. Fisher, 203 Mass. 122, 133. Jennings v. Puffer, 203 Mass. 534. Rochester Tumbler Works v. Mitchell Woodbury Co. 215 Mass. 194, 197.

Construing the lease in the case at bar according to the terms used, it does not appear to be uncertain or open to doubt. When the date of a lease and the beginning of its term are the same there is no room for construction as to the meaning of words expressing present time. The word "now” as matter of construction must refer to the date of the instrument and the beginning of the lease unless a mistake is apparent on the face of the papers, which is not the case here. “Now” has sometimes been held to mean the beginning of the term, when that is different from the date of the lease. Holbrook v. Chamberlin, 116 Mass. 155. White v. Nicholson, 4 Man. & G. 95. Chesapeake Brewing Co. v. Goldberg, 107 Md. 485. These cases do not control the case at bar, but tend to confirm the conclusion here reached.

A further question turns on the meaning of the words “ as good order and condition” in the covenants by the lessee, “To quit and deliver up the premises to the lessor ... at the end of the term, in as good order and condition, reasonable use and wearing thereof, fire and other unavoidable casualties excepted, as the same now are.” These words in leases have acquired no inflexible significance. They have not become words of property with a fixed and technical definition. They are to be interpreted as words used in written instruments commonly are interpreted in accordance with general usage and understanding. They seem to be reasonably plain. They impose on the lessee the obligation to make whatever repairs may be necessary in order that at the end of the term the estate may conform to the standard at the time fixed in the lease. Jaques v. Gould, 4 Cush. 384, 388. The covenant, however, is only to deliver the premises in “as good order and condition as” at the beginning of the lease. This involves a comparison with the standard established by the lease. It does not require that they be delivered in “the same shape and condition” as in Reed v. Harrison, 196 Penn. St. 337, nor in a “like condition” as in Murray v. Moross, 27 Mich. 203, nor in the “same state” as in White v. Nicholson, 4 Man. & G. 95. The signification of the difference between these and such like phrases substantially prohibiting any change in the condition of the premises, and the words in the present covenant, may be measured by reference to the further stipulation by the lessee that he will not “make or suffer to be made any alteration therein, but with the approbation of the lessor thereto, in writing . . . first obtained.” This clause indicates a purpose in the minds of the parties that if both agree the lessee may make alterations. “Alteration” as applied to a building usually denotes a change or substitution in a substantial particular. Commonwealth v. Hayden, 211 Mass. 296. The repair and alteration clauses construed together manifest an intent that the building at the expiration of the term shall be returned to the lessor in a state of repair as good as it was in at the beginning as to both its original construction and also such changed state as it may be transformed into in accordance with the express terms of the lease. But it does not mean that alterations so made must be eliminated and the initial condition restored. E that had been in the minds of the parties, words indicating identity with the former condition and not comparative excellence would have been employed. Marks v. Chapman, 135 Iowa, 320, 323. See Perry v. J. L. Mott Iron Works, 207 Mass. 501; Pfister & Vogel Co. v. Fitzpatrick Shoe Co. 197 Mass. 277.

There is nothing in Watriss v. First National Bank of Cambridge, 124 Mass. 571, 576, inconsistent with this view. Although the same words occurred in the covenant in the lease under consideration in that case as in the one at bar, no such issue was involved as is presented here and the description of the covenant at page 576 as being one to deliver up the premises “in the same condition” was by "way of reference and not of analysis or definition. A chance phrase used for one purpose in illustration or in the course of a chain of reasoning cannot be wrested out of its context and seized upon as stating a fundamental proposition of general application. See Quinn v. Leathem, [1901] A. C. 495, 506.

The defendant made alterations in the building and changes in the position and arrangement of machinery. It was found by the auditor that these were made with the knowledge and consent of the plaintiff who waived the provision of the lease that no alterations should be made but with his approbation first obtained in writing. Under these circumstances the lease does not require of the lessee a restoration to the original condition.

The plaintiff had a right to demand under this covenant in the lease that the tenant leave the premises, as they have been altered during the term with his knowledge and consent, in as good order and condition (with the exceptions stated)' as they were in at the beginning of the term. This is the extent of his right'. He cannot require that they be restored to their original condition so far as they have been altered or changed with his consent during the term. The defendant’s requests for rulings numbered 6 and 7 should have been given in substance. As this was not the rule of law adopted at the trial, the exceptions upon this point must be sustained.

If it should be found that there was a breach of the covenant as thus construed, the measure of damages would be such a sum of money as at the end of the term would put the premises in the condition in which the tenant was bound to leave them. Watriss v. First National Bank of Cambridge, 130 Mass. 343. Appleton v. Marx, 191 N. Y. 81, 87.

The defendant is not entitled to the deduction of $50 from the amouut of rent due under the first and fifth counts of the declaratian, being the proportional part of the rental for the period during which the premises were unfit for use by reason of the fire. The parties settled this matter by agreement indorsed upon the lease, whereby a concession was to be allowed to the tenant upon, completing the terms of the purchase, which concession included “all loss sustained by said Jean under the within agreement in consequence of said fire.” These are comprehensive words and cover all the damage sustained by the tenant in this respect. If he was willing to make an agreement which plainly limited his right in this respect to an allowance upon the purchase price, he cannot now seek to have it changed because the purchase has not been made. Gaston v. Gordon, 208 Mass. 265.

Exceptions sustained.