Amory v. Melvin

If the lessee of a part of a building covenants with the lessor that he will pay the taxes which may be payable or assessed in respect of the premises, the lessor may prove a usage to apportion the taxes among the different tenants according to the amount of rent paid by each. Under a lease which expired on the first of July, 1870, and in which the lessee covenanted that he would pay the taxes which might be payable or assessed in respect of the premises during the term, the lessee is liable to pay the taxes for the year 1870, although the assessors did not complete their valuation and determine the rate of taxation till August; the tax being in law regarded as assessed upon the first of May.

Actions oe contract to recover the taxes assessed on the first of May, 1870, upon the premises occupied by the defendants as tenants of the plaintiffs under leases containing covenants that the “ lessees .... will during the said term .... pay to the said lessors .... all taxes .... which may be payable or assessed in respect of the premises or any part thereof during said term.” The cases were tried in the Superior Court, before Brigham, C. J., without a jury, when the following facts appeared: The defendants entered into the contracts of lease declared on in the respective declarations, and occupied the premises described in the leases, until July 1,1870, paying rent and taxes according to the terms of the leases, excepting the taxes sought to be recovered in these actions, of which they had notice, and which they refused to pay. The premises described in the leases were part of a building styled Amory Hall, which, with the land upon which it stood, was valued by the city of Boston, for the purposes of taxation for the year 1870, and as of May 1,1870, at the sum of $182,000, and the taxes for the year 1870, assessed upon the same, was at the rate of $15.30 per $1,000 and amounted to the sum of $2784.60, which was paid by the plaintiffs in October, 1870. The plaintiffs sought to recover of Melvin & Badger, the. defendants in the first suit, the sum of $543.09, a sum bearing the same proportion to the tax assessed upon Amory Hall f$2784.60) as the rent reserved under their lease, $2500, (or $3043.09, adding taxes treated as rent,) bore to the sum of the whole rents of Amory Hall for the year 1870, $13,800.00 (or $15,603.46, adding taxes treated as rent); and they sought to recover of B. & T. C. Bacon, the defendants in the second suit, the sum of $651.71, a sum in like manner bearing the same proportion to the tax assessed upon Amory Hall as the rent reserved under their lease bore to the whole rent, in accordance with the statement following: Apportionment of taxes among the different tenants of the same estate was, by usage, made in the mode adopted by the plaintiffs in this case; and the defendants, during their occupation under the leases, had, on previous occasions, paid taxes on the leased premises, apportioned as in the present case; but there was no evidence that when the defendants thus paid taxes, the mode of apportioning the same was disclosed to them, or was in question between them and the plaintiffs. The evidence of this usage was admitted against the objection and subject to the exception of the defendants. The valuation for taxation and assessment of taxes, made upon Amory Hall for the year 1870, was in the mode customary in the city of Boston, as follows: one or more assistant assessors, to whom were assigned specific districts, inspected estates, and estimated their value for the purposes of taxation, and reported their estimate, &c., to the board of assessors, and thus the whole valuation of the city was-obtained and reported, having reference to values on May 1, 1870, and the valuations thus obtained were completed and recorded on August 9, 1870, and on August 23, 1870, the rate of taxation was fixed. The Amory Hall premises included a small yard, of which some of the tenants, but not all of them, during the defendants occupation under the leases, had the use either for purposes of light, air or storage; and the defendants Melvin & Badger had such use of the yard in common with three other tenants. But the defendants R. & T. C. Bacon had no use of the yard for any purpose. The defendants had occupied the premises under different leases. The other tenants of other parts of the building had had leases also, of different terms, and the rent had varied with them in the different terms. Upon the foregoing facts, the court ruled that plaintiffs were entitled to recover of the defendants taxes under the leases, apportioned as above, for the year 1870, and found for the plaintiffs. The defendants, in each case, alleged exceptions.