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This, however, does not control our deter [5-7] The law of Massachusetts recognizes mination; for the stipulation presents the that in a lease of a furnished house, in some question whether either or both cases were cases, there is an implied condition that the for the jury, not whether the jury's action premises are fit for habitation. The case of can be sustained.

Ingalls v. Hobbs, 156 Mass. 348, 31 N. E. 286, [1-3] It is established firmly as the law of 16 L. R. A. 51, 32 Am. St. Rep. 460, generally Massachusetts that in the ordinary letting of cited as an authority for this exception, limit. real estate there is no implied undertaking by ed the decision very carefully to its particuthe lessor that the premises are fit for occu- lar facts. We assume the law to be as stated pancy, and there is no liability on the lessor above. The exception, however, is not to be for injury which results from a defective extended to the letting of premises which are condition of the premises of which he and only partially furnished. The implied condi. those who act for him in the letting are igno- tion that the premises are fit for habitation rant. There is no obligation on the lessor to is based upon an inference that the lessee inexamine and inform himself of the condi- tends immediately to occupy the premises as tion of the premises before leasing them. The they stand. Ingalls v. Hobbs, supra. Such law is clearly and forcibly stated with suffi- an inference is not justified where action on cient citation of authority in Stumpf v. Le-the part of the lessee is necessary before they land, 242 Mass. 168, 136 N. E. 399.

will be fit for immediate occupation. The [4] The declarations are drawn in full rec reason for the exception fails. See Chester ognition of the law as there stated. They v. Powell, 52 L. T. (N. S.) 722. Moreover, the allege that the defect existed at the time of condition is implied only with regard to the the letting and that the lessor or those acting state of the premises at the beginning of the for him or her knew then of the defect. The tenancy and does not cover defects which evidence, however, as matter of law, does not arise later. Sarson v. Roberts (1895) 2 Q. B. support the allegations. There is no evidence 495; Chester v. Powell, supra. that any one knew of the defect, if there was [8] The plaintiff contends that her case one, at the time of the letting. The plaintiff, comes within the exception. The matter is and all the witnesses who touch this point, important in view of the stipulation of the declare that they saw the floor of the closet report; because if there was an implied couat that time and that it seemed sound. The dition of fitness, an obligation to examine plaintiff testified that she went into the closet and inform himself in regard to the state of sis and seven times a day, and walked over the premises at the moment of letting rested the board; that'nothing about it attracted upon the landlord, and the allegation in the her attention and "there wasn't anything to declarations that the landlord ought to have see but what was all right; it showed all known of the defect became proper and materight."

rial, since a jury which could not find that The accident occurred July 27, 1920, nearly the landlord had knowledge of a defect might four months after the plaintiff entered, and be justified in finding that he should have had the jury would not be justified, if they dis- knowledge, and a question for the jury might believed all that was testified, in inferring have been presented on the evidence. the existence of the defect at the time of the We are unable to agree with her. The eviletting. There was no testimony on which dence goes no further than to justify a tindsuch an inference could be based. The mere ing that some furnishing was leased with the fact that the house was thirty years or more rooms. There is no dispute that a very conold would not justify the inference that the siderable part was supplied by the tenant. floor was then defective, or that the lessor Upon the evidence, the jury could not find the knew of the defect. If it is suggested that lease of two completely furnished rooms. the lessor or those who acted for the lessor The judge should have ruled that the cases do ought to have known of the defect, and that not fall within the exception which, under the declaration sets out this duty to know, Ingalls v. Hobbs, we recognize to the general the answer is that such is not the law, and rule that no warranty of fitness is implied. that the declaration is too broad in this re- The plaintiff was not entitled to go to the spect. Stumpf v. Leland, already cited, jury on this question. Mercier v. ('nion quotes from O'Malley v. Twenty-Five Associ- Street Railway, 230 Mass. 397, 119 N. E. 764. ates, 178 Mass. 555, 60 N. E. 387, and shows

As matter of law upon the evidence taken that no such duty to know is imposed by the most favorably for the plaintiff she did not law. The jury could not be allowed to act on make out a case against either defendant, any different view of the law.

and, under the terms of the report, the order This would dispose of the cases were it not must in both cases be for an exception to the principles just stated. Judgment for the defendant,

(148 N.E.)

18. Corporations am 30(6)-Acceptance of rent LENNOX v. HASKELL et al.

from corporation held not to bar landlord's (Supreme Judicial Court of Massachusetts.

recovery against partnership therefor. Essex. Sept. 19, 1925.)

Where corporation, taking over assets of

copartnership, was tenant of firm which had I. Corporations 32(1)-Articles not assum- leased premises from plaintiff, acceptance of ed to have been filed on day organizers voted rept thereafter from corporation held not bar to assume liabilities of copartnership.

to plaintiff's recovery against firm for rent. In view of G. L. c. 156, § 12, where charter was issued to corporation on June 11; it Report from Superior Court, Essex Councannot be assumed that articles were filed on ty; Patrick M. Keating, Judge. April 12, the day when organizers voted to purchase assets and assume liabilities of co Suit in equity by James T. Lennox against partnership.

W. Fred Haskell and others to recover rent

due under lease. On report. Case remanded 2. Corporations Ou 30 (1)-Vote of organizers before corporation existed held not to bind it, to superior court for establishment of ac

count, and decree to be modified in accordVote of organizers of corporation to assume

ance with opinion. assets and liabilities of corporation on date when corporation was not in existence held not John C. Coughlin, of Boston, for plaintiff, to be its vote, nor to bind it.

Edw. J. Garity, of Lynn, for defendants 3. Corporations en 447–To make contract of Central National Bank and Haskell, Brown corporation valid, all elements necessary to & Bradbury, Inc. other contracts are essential.

Everett Borofski, of Lynn, for defendants To make contract of corporation valid, all Haskell, Brown & Bradbury, Inc., W. Fred elements necessary to other contracts are es Haskell, Carroll R. Brown, and Albert W. sential.

Bradbury. 4. Corporations Qaw 30(6) - Corporation held

not to have assumed lease, nor agreed to pay CARROLL, J. The plaintiff leased, in landlord rent accrued.

writing to the defendants Haskell and Organizers of corporation met on April 12 Brown, copartners (hereinafter referred to as and voted to purchase assets and assume lia- the firm), certain premises in Lynn for the bilities of partnership, business of which was term of five years, from July 1, 1920, to July to be continued by corporation. Charter was

1, 1925. In April, 1923, it was decided to issued on June 11. Held, that vote of organ

form a corporation. On the 12th day of izers on April 12 to assume debt for rent was not agreement of corporation to assume lease April, Haskell, Brown, and the defendant and pay landlord rent accrued.

Bradbury, who was to contribute $10,000 "as

part of the capital stock," "drew up an 5. Corporations am 30(6) - Contract that cor

agreement of association and articles of or. poration, taking over partnership assets, ganization.” It was found that one of the would pay accrued rent, not implied.

purposes of forming the corporation was to Fact that corporation, organized to take take over the assets and liabilities of the orer assets of partnership, which leased prem: firm, and to continue the shoe business forises from plaintiff, carried on business, and made

A charter was ispayments on account of rent from time to time, merly conducted by it. held insufficient to show that it impliedly agreed sued to the corporation on June 11, 1923, unto pay rent accrued at time of organization, der the name of Haskell, Brown & Bradbury,

Inc. This corporation is one of the defend6. Corporations n30(6)--Corporation taking ants. Its stock was divided equally between

over partnership assets held not to have Haskell, Brown and Bradbury, who comagreed to pay rent subsequently accruing, nor prised the board of directors and who were assume liability under lease.

familiar with the lease from the plaintiff. In view of G. L. c. 183, § 3, and chapter 259, § 1, subd. 4, corporation organized to take

The report states that on April 12, at a over assets and liabilities of partnership held, meeting of the directors, it was voted: under facts, not to have agreed with landlord * "The trial balance of Haskell & Brown was to pay rent subsequently accruing, nor to as presented and it was voted to purchase the sume liability under lease of premises to part-assets and assume the liabilities of said comnership

pany as shown by said trial balance to be there7. Corporations Cm30(6)-Copartpership, as

fore the sum of $78,000 to be evidenced by 780 sets of which were taken over by corporation, shares of the common capital stock of the comheld liable for rent under lease.

pany.' 'It was voted that the net assets of said

company are worth the sum of $78,000.'” Copartnership, having five-year lease on premises, was taken over by corporation, which purchased its assets and assumed its liabilities,

It was also found as a fact that after April Held that, since lease of premises was to firm, 1, 1923, the business was conducted by the firm was liable for rent, and continued so un corporation, which occupied the leased premder lease; it not having been surrendered by ises as the firm bad done. The manufacturlessee and accepted by lessor.

ing was carried on in another state, but the em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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corporation maintained its only Massachu-, tary. The record does not disclose the date setts office in the leased premises and collect when the articles of organization were filed. ed as rent whatever was collected from sub- | The charter was issued to the corporation on tenants.

June 11. It cannot be assumed that the artiThe plaintiff's suit is in equity. He seeks cles were filed on April 12, the day the organto recorer the rent due under the lease. It izers voted to purchase the assets and asdoes not appear at what time the articles of sume the liabilities of the firm. There was organization were filed with the state secre no express contract by the corporation to tary. There was no express agreement by assume the rent which had accrued on April the corporation to assume the liabilities of 12: The corporation was not in existence at the firm, "unless such agreement is constitut- that time. The vote was not its vote and did ed by the above quoted vote of the directors” not bind the corporation. If a contract were of April 12, 1923; no bill of sale transferring | made between the plaintiff and the defendant the firm assets to the corporation was exe- corporation it would have its inception when cuted; and there was no written assignment entered into by the corporation itself. To of the lease, "unless the above vote consti- make it valid all the elements necessary in tutes such assignment."

other contracts were essential, Abbott v. The balance sheet, already referred to, Hapgood, 150 Mass. 248, 252, 22 N. E. 907, 5 showed that there was due the plaintiff as L. R. A. 586, 15 Am. St. Rep. 193; Pennell v. rent under the lease to April 1, 1923, the sum Lothrop, 191 Mass. 357, 77 N. E. 842; Whitof $4,718; but the rent for March, 1923 | ing & Sons Co. v. Barton, 201 Mass. 169, 90 ($780), did not appear on the balance sheet. N. E. 528. There is nothing to show that any The firm books were never closed, the corpo- express contract between the plaintiff and ration continuing the books of the firm as the corporation was made. The corporation though there had been no change in the form did not agree to assume the lease and pay of the organization. These books carried a the plaintiff the rent already accrued. rent account showing on the first of the [5] Nor do we find that there was any im. month the amount of rent accruing. On April plied contract on the part of the corporation 9, 1923, “there was paid the plaintiff out of to pay this rent. It entered into possession the account of Haskell, Brown & Bradbury, of the premises when it was organized; but Inc.," $798; on May 7, $794 was paid; both there was no privity of estate between the payments being on the rent account. June 11 plaintiff and a corporation which was not in the corporation paid the plaintiff $802 “from existence during the time the premises were its corporate funds”; December 17, 1923, the occupied by the firm under its lease. The corporation paid the plaintiff $774; January facts that the corporation took over the as18, 1924, $774 was paid.

sets of the firm, that it carried on the busiThere was evidence that when the corpora- ness, and that it made payments for rent tion was formed the firm "was sound finan- from time to time, are not sufficient to show cially," and when the bill was filed the cor- that the corporation impliedly agreed to pay poration was insolvent. In February, 1924, the accrued rent, North Anson Lumber Co. the directors of the corporation voted to liq-v. Smith, 209 Mass. 333, 335, 95 N. E. 838, is uidate, and the defendants Brown, Brad- not applicable to the facts appearing in the bury, Cahoon, and Conway were appointed a case at bar. The corporation did not agree committee for this purpose. The firm has no with the plaintiff to assume the rent already assets which can be reached to secure the due from the firm, and did not, according to plaintiff's claim, except such claims as it has the report, at any time after its organization against the corporation. The judge found contract with the firm to assume this rent. that the plaintiff could recover from the cor [6] 2. The corporation after its organizaporation rent to July 1, 1924, amounting to tion did not agree with the plaintiff to pas $9.986, with interest, and rent as it became the rent subsequently accruing, and so far as due after July 1, 1924; he also appointed re-l appears on the record did not assume any li: ceivers of the corporation. It was decreed ability under the lease.

In H, P. Hood & that the firm owed the plaintiff for rent the Sons v. Perry, 248 Mass. 350, 142 N. E. 794, sum of $9.956 with interest; that the corpo- the conveyance was from one corporation to ration assumed the rent under the lease “and another corporation already in existence

. In [has] become obligated to pay to the plain the present case there was no assignment of tiff" the rent under the lease “as and when it the lease or transfer in writing of the firm shall become due.” Receivers were appoint- assets to the corporation after it was formed. ed under the decree. From this decree the There was no express or implied promise on defendants appealed. The defendants do not its part with the plaintiff. See G. L. c. 183, object to that part of the decree appointing $ 3; G. L. c. 259, § 1, subd. 4; Podren V. Macreceivers. The case is before this court on a quarrie, 233 Mass. 127, 123 N. E. 335. The report.

corporation is not directly liable to the plain[1-4] 1. By G. L. c. 156, § 12, the existence tiff either for the rent which had accruet of a corporation organized under general when its articles of organization were filed lat's begins upon the filing of the articles of or for the rent which subsequently became organization in the office of the state secre- ( due.

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(148 N.E.) 17,8] 3. The lease was to the firm, and the 2. Statutes Om 184 - Statutes interpreted to firm was liable to the plaintiff for the rent effectuate purpose of framers. and continued so under its contract with Statutes must be interpreted, if reasonably him. The lease was not surrendered by the possible, so as to effectuate purpose of framers. lessee and accepted by the lessor. Johnson

3. Statutes Omw 203~Omissions from statutes v. Stone, 215 Mass. 219, 102 N. E. 366. The

not supplied by judicial department. corporation was a tenant of the firm; it occupied the premises with the assent of the omissions not being supplied by judicial depart

Statutes must be interpreted as enacted, firm and it is liable to the firm for the rent

ment. from the time the articles of organization were filed, when it came into possession, un- 4. Statutes em 212-Presumed that General til the relation came to an end. See Central Court intended to remedy evil at which leg., Mills Co. v. Hart, 124 Mass. 123, 125; Kirch islation appears to be aimed. gassner v. Rodick, 170 Mass, 543, 544, 49 N. Every presumption is to be indulged that E. 1015. The acceptance of rent from the General Court intended to put in force a piece corporation did not bar the plaintiff's recoy- of legislation effectual to remedy evil at which

it ery against the firm. Johnson v. Stone, su

appears to be aimed. pra. He cannot be deprived of his rights un- 5. Statutes aw224-Statutes enacted at der his contract with the firm because the

ferent times construed to constitute harmoni. premises were occupied by the corporation ous body of legislation. and its subtenants. See Blake v. Sanderson,

Statutes enacted at different times are to be 1 Gray, 332. The plaintiff therefore is not construed, so far as possible, to constitute a entitled to recover directly against the cor- harmonious and consistent body of legislation. poration. He is, however, entitled to have his debt established in this proceeding 6. Municipal corporations new 252—Power to against the firm, the corporation owing the

alter contract restricted by statutes. firm for rent from its organization until the Terms and purposes of St. 1909, c. 486, $ date of the interlocutory decree, at which 30, and St. 1890, c. 418, § 6, providing for intime it was insolvent. See Deane v. Cald- viting proposal and making contracts of city well, 127 Mass. 242.

of Boston, constitute restriction on power to

amend and alter a contract once made in acThe firm is liable to the plaintiff, as stated cordance therewith, in the decree, for the rent due July 1, 1924; as the lease has not been surrendered, it con- 7. Municipal corporations com 252City officers tinued to be liable for the future rent until have limited power to change contracts. the lease was terminated, and, under a prop City officers of Boston have authority, in er amendment, the plaintiff may have his view of St. 1890, c. 418, $ 6, to add to or change debt established against the firm for the fu- contracts of city within reasonable limits, to ture installments of rent. Leavitt v. Dimond, remedy incidental defects and to improve work 227 Mass. 216, 116 N. E. 410. The plaintiff's in minor details, but reference to alteration in

section 6 is not grant of power, but is limitation claims against the firm should be established

as to form in which alone it can be accomas well as the account between the firm and

plished. the corporation, and the debt due the firm from the corporation, from the date of the 8. Municipal corporations E252-Alteration filing of its articles of organization to July 1, resulting in substantially new contract not 1924, should be applied for the benefit of the

permissible. plaintiff in accordance with the order of the Alteration of contract of city of Boston, court. See Evans, Coleman & Evans, Ltd., v.

which resulted in a substantially new contract Pistorino, 245 Mass. 94, 139 N. E. 848. The as to a main element. held not permissible, uncase is to be remanded to the Superior Court der St. 1890, c. 418, $ 6. for the establishment of these accounts. 9. Municipal corporations -252-Contract

The decree should be modified in accord not modified under guise of alteration into ance with this opinion.

new contract. Decree accordingly.

When a contract is to be modified, so as in substance and effect to be made new and different in main aspects, that cannot be done un

der guise of amendment or alteration. MORSE et al. v. CITY OF BOSTON et al.

10. Municipal corporations On 252-Amend.

ment of contract changing unit of payment (Supreme Judicial Court of Massachusetts.

held to violate statute. Suffolk. Sept. 19, 1925.)

Where unit of payment of contract with city

was by ineasurement of earth in place after be1. Municipal corporations En235Contracts ing rolled and compacted, change by amendmust conform to statutes.

ment, paying for earth as measured in vehicles, All contracts made by or on behalf of city of less 10 per cent., an apparent increase of alBoston must conform to requirements of St. most one-third, held not incidental to main con1909, c. 486, $ 30, and St. 1890, c. 418.

tract, and to violate St. 1890, c. 418, $ 6.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*

11. Municipal corporations w252—Good faith, loam, with other improvements. The con

does not warrant amendment to contract in tract was dated July 17, 1922. Further alleviolation of statute.

gations are: Good faith of city officers and contractor does not warrant amendment to contract in vio- that there would be required 90,000 cubic yards

That the contract "contained an estimate 'ation of statute.

of earth and gravel filling, 6.000 cubic yards of 12. Municipal corporations Cm 226-Inconven- similar filling for a roadway, 75,000 cubic yards

ience does not warrant departure from stat. of loam," the total being 171,000 cubic yards, utory mandate.

and 6.000 cubic yards of earth to be excavated Mere inconvenience does not warrant de- and used in filling, the exact quantity of which parture from statutory mandate as to munici-“to be paid for shall be determined by measurepal contracts.

ment of the space filled

after the ma

terial has been leveled off and rolled." 13. Municipal corporations 226-Parties "On July 5, 1923, and again on May 26, 1924,

cannot by contract overcome statutory re- the contract was amended by agreement of all quirement.

parties with the approval of the defendant Parties cannot by contract overcome force mayor to increase the earth and gravel filling of statutory requirement.

and the loam by about 214,000 cubic yards, but

always with the same unit price, together with 14. Municipal corporations 252—Facts al- other and minor modifications.

The leged showed alterations in contract to be time for completing the contract, originally without consideration.

fixed as July 1, 1923, was extended from time In bill, under G. L. C. 40, $ 53, to restrain to time, and the last extension, granted May 22, illegal payment of money from city treasury, 1924, extended the time for completion to Ocfacts set out to effect that, without change in tober 1, 1924,

Monthly

payments conditions affording just ground in loss occa

* have been made to the defendant J. C. sioned to contractor or gain accruing to city, Coleman & Sons Company on the basis of the more money was to be paid out to contractor filling and loam delivered in vehicles, although than was required by contract, held to show the quantity of filling and loam delivered as alterations in contract to be without considera- measured in vehicles exceeds the quantity of tion.

filling and loam as measured after having been

permanently placed in position and rolled as 15. Municipal corporations Ow252Offer by required by the contract, by over one-third. contractor held not to bind municipality.

The said payments upon the basis of filling and Mere offer by contractor to take more loam delivered as measured in the vehicles bare money for performance of public work than is been made for about 351,000 cubic yards in the required by valid contract, when accepted by sum of about $355,850." city officials, does not bind municipality. 16. Municipal corporations Ouw 1000(5)-Alle Actual measurements of the filling and loam gations of bill by taxpayers held sufficient.

in place, made at the request of the finance In bill by 10 taxpayers, under G. L. c. 40, $commission. "show that only between 137.000 53, to restrain illegal payment of money from and 172,300 cubic yards have been actually treasury of city of Boston, allegations held sufficient to effect that payments under amended placed in permanent position," and that the contract were proposed in immediate future.

contractor “has been overpaid to the extent of

over $200,000." Thereafter, on August 8, Report from Supreme Judicial Court, Suf- 1924, the contract was further amended by folk County.

striking out the original provisions for pay. Taxpayers' suit by Francis A. Morse and ments of filling and loam measured in place, others against the City of Boston and others, and inserting in place thereof provisions for Case reported on bill and demurrer thereto. I vehicles less a deduction of 10 per cent. This

payments of filling and loam measured in the Demurrer overruled.

amendment purports and was intended to ap R. C. Curtis and C. P. Curtis, Jr., both of ply to filling and payments already completed Boston, fór petitioners.

as well as to future filling and payments. J. P. Lyons, Asst. Corp. Counsel, of Boston, There are also allegations that no bids for for city of Boston and others.

the additional work covered by the amend. J. A. Sullivan, of Boston, for J. C. Coleman ments were called for or advertised, and that & Sons Co.

no signed statement by the park commission

ers giving the reasons for this omission was RUGG, C. J. This is a suit in equity by published, and no written authority for the 10 taxpayers under G. L. C. 40, $ 53, to re-onission to call for bids was given by the strain payment of money out of the treasury mayor. The amendments to the contract are of the city of Boston alleged to be contrary alleged to be illegal and void as contrary to. to law. The bill alleges the making of a con- law and to have been without consideration. tract by the city, duly executed according to It further is alleged that work under the conlaw through the park commissioners, with tract is still in progress and that large sums one of the defendants, J. C. Coleman & Sons of money are about to be paid to the contracCompany, hereafter called the contractor, to tor. fill certain land with earth and gravel and I Several defendants demurred

the

on

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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