H. W. ROBINSON CARPET CO. vs. ROBERT M. FLETCHER & another.

CONTRACT. Writ in the Superior Court dated October 8, 1941.

The action was tried before Buttrick, J., who submitted it to the jury upon instructions "that it was a question of fact for them to determine whether or not the rear building was so annexed to the front building, as to be part of the same building. If they found it was, then they must find for the defendants. If they found they were two separate buildings, then the next issue for them to determine was whether or not the rear building was substantially destroyed or damaged by fire so as to warrant the defendants in cancelling the lease, and if they found it was substantially destroyed, they should find for the defendants." There was a verdict for the plaintiff. The defendants alleged exceptions.

In this court the case was submitted on briefs.

O. V. Fortier, for the defendants.

G. L. Wainwright, for the plaintiff.

RONAN, J. This is an action of contract to recover damages for breach of an implied covenant of quiet enjoyment in a lease given to the plaintiff by the defendants who, it is alleged, evicted the plaintiff from the demised premises which consisted of a store and basement in a building located upon High Street, in Brockton. The case is here on exceptions to the refusal to direct a verdict for the defendants and to give certain requests for instructions.

We shall summarize briefly the testimony. The defendants owned a parcel of land located on the westerly side of Main Street and the southerly side of High Street. The boundary on High Street was one hundred ninety feet in length. The entire frontage on Main Street was occupied by a four-story building which was about one hundred feet

Page 352

wide. There was a fourteen-foot driveway running along the rear or westerly side of this building. West of this driveway was another building two stories high, abutting on High Street. A covered overhead passageway twenty feet wide connected the front building with the second story of the rear building on High Street. The first floor of the Main Street building was divided into eight stores and an entrance to the upper floors. With the exception of two offices, all the upper floors were occupied as a hotel which also occupied the second floor of the High Street building, and the only entrance to the hotel rooms in the latter building was by this covered passageway or through a service entrance in the rear of the building. A part of this passageway had been partitioned off and used as a kitchen by the hotel. The first floor of the High Street or rear building was occupied by four stores, one of which was occupied by the plaintiff under a lease which described the demised premises as "A certain store . . . located on the southerly side of High Street . . . #20, #22, and #24 comprising a portion of the westerly extension of the George E. Curtis properties," together with the basement thereunder. "Said premises are to be occupied by the Lessee solely" for the sale of rugs, carpets and associated merchandise. The lease contained the following clause: "Provided always, that in case the said premises, or any part thereof, or the whole or any part of the building of which they are a part . . . shall be substantially destroyed or damaged by fire or other unavoidable casualty . . . then this lease and the said term shall terminate at the election of the Lessors," and in case they did not so elect a just proportion of the rent was to be did not so elect a just proportion of the rent was to be abated until the premises were put in proper condition for use and occupation. The front building was so badly damaged by fire on April 5, 1941, that the building inspector of Brockton ordered it razed. The fire went through the passageway "and burned a portion of the east wall of the rear building and some of the rooms of the second floor, slightly damaging the same." The plaintiff's store was not damaged and the plaintiff resumed business the day after the fire. A few days later the defendants installed a temporary heating

Page 353

plant in the rear building, which before the fire had been heated by a plant located in the front building. The defendants notified the plaintiff that they had elected to terminate the lease, and later gave a notice to the plaintiff to quit and deliver up the premises, which the plaintiff did on July 1, 1941.

No question arises but that the lease was in full force and effect up to the time the plaintiff was notified that the defendants had elected to terminate the lease on account of the fire. The plaintiff was in possession of the demised premises by virtue of its lease and was entitled to the full use and quiet enjoyment of the premises, even though the lease contained no express covenant for quiet enjoyment, as such a covenant was implied, William A. Doe Co. v. Boston, 262 Mass. 458; Winchester v. O'Brien, 266 Mass. 33; Burofsky v. Turner, 274 Mass. 574, and the plaintiff was entitled to continue in such use and enjoyment so long as it observed the terms and provisions to be observed by it during the full term unless the lease was sooner terminated by the happening of any of the contingencies therein mentioned. Kansas Investment Co. v. Carter, 160 Mass. 421. Clayton v. Perry, 276 Mass. 12.

The principal contention of the defendants is that the judge should have ruled that the front and rear buildings constituted a single structure and that the damage to the front building justified the defendants in terminating the lease. Such a ruling could not have been given, for each building rested upon its own foundation and had its own exterior walls and its own roof. Each was a separate building. Nowell v. Boston Academy of Notre Dame, 130 Mass. 209, 210. Jenney v. Hynes, 282 Mass. 182, 190. Cochran v. Roemer, 287 Mass. 500. The lease gave the plaintiff no right of access to or egress from the front building over the land of the lessors. Indeed, the overhead passage led to the second floor of the High Street building and not to the store of the plaintiff. The lease gave the plaintiff no interest in the front building. The case in this respect is governed in principle by Houghton v. Moore, 141 Mass. 437, where it was held that the ground floor of two adjoining

Page 354

buildings and the upper floors of the front building were held to be included in a lease, and that the upper floors of the rear building, which were separated from the upper floors of the front building, were not so included. The court could not have ruled in the present case that the front and rear buildings comprised a single structure. The court should have ruled that the front and rear buildings were separate and that the substantial damage to or destruction of the front building was not damage to or destruction of the demised premises "or the whole or any part of the building of which they are a part," but the defendants were not harmed by letting the jury decide whether the buildings constituted a single structure or two distinct buildings, for they came to the right conclusion that there were two buildings. The erroneous submission to a jury of a question of law does not constitute reversible error where the jury comes to a correct conclusion. Rogers v. Abbot, 206 Mass. 270. DeVito v. Boehme & Rauch Co. 239 Mass. 290. Winsor School v. Eastman Heat Control Corp. 305 Mass. 420.

The jury were warranted in finding that the fire did not cause substantial damage either to the demised premises or to the High Street building in which they were located, and that damage to the extent and of the character required for the termination of the lease by the defendants did not occur. Consequently, there was no error in the denial of the motion for a directed verdict or in refusing the requests for instructions, as the motion and all the requests were expressly based upon the assumption that in some way or other the leased premises were a part of a building that included the front building and that the defendants thereby were entitled to terminate the lease. No other contentions were raised by the defendants and no other question is considered. Wall v. Hinds, 4 Gray 256. Oliver v. Dickinson, 100 Mass. 114. Houghton v. Moore, 141 Mass. 437. Durr v. Chase, 161 Mass. 40. Storey v. Brush, 256 Mass. 101. D. A. Schulte, Inc. v. American Realty Corp. 256 Mass. 258. Norris Drug Co. v. Gainsboro Building Corp. 260 Mass. 117. Clayton v. Perry, 276 Mass. 12.

Exceptions overruled.