ALONZO W. PERRY v. J. L. MOTT IRON WORKS COMPANY.

CONTRACT by the lessor against the lessee under a lease in writing of premises numbered 378 on Boylston Street in Boston, the first count being for charges under the lease for lighting,

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the second for charges for water, and the third and fourth as stated in the opinion. Writ in the Municipal Court of the City of Boston dated August 30, 1906.

On appeal to the Superior Court the case was heard by Wait, J., without a jury. The defendant admitted liability under the first and second counts. The facts relating to the third and fourth counts are stated in the opinion. As to such facts, the parties agreed that, "if the defendant was bound to restore the premises at the expiration of the lease to the same general condition in which they were before any changes were made by the lessee, reasonable use and wear thereof excepted, then it is agreed that the premises were not so left by the lessee. If the defendant was not bound to restore the premises at the expiration of the lease to the same general condition in which they were before any changes were made by the lessee, reasonable use and wear thereof excepted, but was only bound to leave them in the same general condition as they had been put by reason of the change made by it, the lessee, reasonable use and wear thereof excepted, then it is agreed that they were so left by the lessee. If upon the foregoing facts the plaintiff is entitled to recover for removing the alterations and additions made by it and restoring the premises to their former condition, it is agreed that he shall recover the sum of $626.48, and if he is entitled to recover for loss of rent because of the time consumed thereby, it is agreed that it took the plaintiff, using reasonable despatch ten days or one third of a month to remove the alterations and additions and restore the said premises to their former condition, and that a fair rental for the store in June, 1906, when such work was done by the plaintiff was $6,000 per year."

The document which was offered in evidence by the plaintiff and is referred to in the last paragraph of the opinion was an agreement by the defendant to take a lease of the premises in question, and contained certain provisions as to things to be done by the lessor and to be permitted to be done by the lessee. Among the latter was the following:

"The lessee is to have the right to make such alterations and additions within said leased premises as may be necessary for his business, and to remove at the end of said term such tiling and special fittings as he puts in at his own expense, hereby agreeing

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to put the premises in as good repair as they are at the beginning of said term, reasonable wear and tear excepted."

The trial judge found for the defendant on the third and fourth counts of the declaration; and the plaintiff alleged exceptions.

J. E. Hannigan, for the plaintiff.

G. V. Phipps, for the defendant.

RUGG, J. This is an action of contract upon a lease of a store for a term of six years and two months. Its provisions now material were that the lessee would "not injure, overload or deface the premises in any way, or suffer or permit the premises or any part thereof, during or at the determination of these presents, to be injured, overloaded or defaced in appearance, whether by removal of any fixture or otherwise; and . . . not make any alterations or additions during the term . . . except such as are hereinafter permitted . . . and peacefully yield up to the lessor the premises, and all erections and additions made to or upon the same, clean and in good repair in all respects. . . . And it is agreed that the lessee may make such alterations and additions within said leased premises as may be necessary for his business, and may remove at the termination of this lease such tiling and special fittings as have been put in at his own expense, provided he puts the premises in as good repair as they were in at the beginning of said term." The defendant pursuant to the lease built upon the premises six bathrooms with plaster walls covered with tiling, and installed appropriate fixtures and tiled floors, and a balcony, all of permanent construction for the purpose of adapting the premises for its business of selling bathroom and sanitary fixtures and plumbers' supplies. At the expiration of its lease the defendant did not remove any of these additions and alterations. This action is brought to recover the expense of removing them in order to adapt the premises to other uses and the rent for the time required in doing the work.

The trial judge found that the bathrooms were trade fixtures, but were so constructed as to constitute an alteration and addition, and were built with the knowledge and consent of the lessor, but added nothing to the value of the premises, and their removal was necessary in order to let the premises to another tenant. Under these circumstances the plaintiff cannot recover

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unless some provision of the lease gives this right. Pfister & Vogel Co. v. Fitzpatrick, 197 Mass. 277. It is plain that by the express terms of the lease changes like those actually made were contemplated and allowed. It is contended, however, that the conditional clause in the final paragraph of the lease expressed in the words "provided he puts the premises in as good repair, as they were at the beginning of the term" applies as well to the permission to make the alterations and additions as to that to remove them. The rule of grammatical construction of language is that a qualifying word or phrase ordinarily refers to its nearest antecedent, and that although punctuation may be disregarded when the intent of the instrument seems so to require, yet it may be resorted to when it seems to throw light on the interpretation. Greenough v. Phoenix Ins. Co. 206 Mass. 247, 251, and cases cited. "Repair" as here employed naturally means a mending of the waste or decay incident to a removal rather than a restoration to an original state, when the alterations or additions were sound and without deterioration as structures. "Repair" is not equivalent to "condition" in this connection. This is confirmed by the earlier provision of the lease to the effect that all erections and additions, if left, should be yielded up to the lessor "clean and in good repair." Nor can it be said that these additions "defaced" the premises and hence should have been removed by the tenant. They were not defacements but useful adaptations to the needs of the tenant, for which they were designed. Construing the lease as a whole and giving reasonable effect to its several provisions, it appears to give to the lessee the option of removing the additions and alterations at the expiration of the term, and if this option is exercised the premises must be left undefaced in appearance and not in any state of depreciation by such removal; but if the option was not exercised, then the premises, together with all additions, must be left for the landlord in a good state of repair, reasonable wear and unavoidable casualties excepted. As the tenant did not elect to exercise the privilege of removal, the plaintiff could not compel him to make such removal. Therefore he cannot recover.

The evidence as to the contents of the preliminary agreement for the lease was properly excluded under the familiar rule that when a contract is formally reduced to writing, without fraud or

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mistake, and is signed, all previous or contemporaneous discussions and memoranda are either rejected or embodied in it, which alone expresses the agreement. There is no such obscurity or ambiguity about the language employed or the subject-matter involved as to open the door for explanation. Commonwealth Trust Co. v. Coveney, 200 Mass. 379. Jennings v. Puffer, 203 Mass. 534, and cases cited.

Exceptions overruled.