Pratt v. Paine

A lease of a dwelling house for five years provided that the lessor might terminate the lease by notice, and that, if this was done during the first three years of the term, the lessee should be paid such sum as a compensation for the loss he may “ by such abridgment of the term sustain in consequence of expenditures incurred by the lessee in fitting up the premises, and expenses incurred in removing.” In an action by the lessee to recover for expenses incurred by him in fitting up the premises, the lease having been terminated by notice within the three years, it appeared that, at the time the lease was made, the building was in thorough repair; but the lessee made some changes in it, and furnished it. Held, that the term “ fitting up the premises ” included not only the fitting up of the building and premises to the uses of the lessee, but the fitting of his furniture to the building, such as carpets, window curtains and the like. Held, also, that the measure of the lessee's damages was the loss sustained by reason of his having incurred such expenditures the full benefit of which he had lost by the abridgment of his lease, and not the entire cost of fitting up. In an action to recover compensation for services in effecting a lease, the plaintiff contended that the defendant agreed to pay him regular brokers’ commissions, and put in evidence of what a broker would be entitled to by the custom. The judge ruled, against the defendant’s objection, that the custom was a reasonable one, and instructed the jury that they should find according' to the custom, if they found that the defendant agreed as alleged; but that, if they found that the services were rendered without an agreement as to compensation, they should find the value of the services. The jury returned a verdict for a less sum than that testified to as allowed by the custom. Held, on the defendant’s bill of exceptions, that the question of the reasonableness of the custom need not be considered

Contract against the trustees under the will of Isaiah Atkins. The first and third counts were upon a lease whereby the defendants leased to the plaintiff certain premises on Kingston Street, in Boston, for a term of five years from October 1, 1871, “ to use and occupy the premises only as a dwelling house,” and containing the following clause: “ Provided, however, that the said lessors, or those having their estate in the premises, may, at any time during the term, terminate this lease by giving to the lessee, or those holding under him, three months’ notice in writing of their intention so to do; and, if such notice shall be given any time during the term, the lessee, or those having his estate in the premises, shall have the right to continue in occupation of the premises during the three months next ensuing the day on which such notice shall be given, free of all obligation to pay rent; and, if such notice shall be given during the first three years of the term, the lessee, or those having his estate in the premises, besides his right to oeeupy as aforesaid shall be paid such sum as a compensation for the loss he or they may by such abridgment of the term sustain in consequence of expenditures incurred by the lessee in fitting up the premises, and expenses incurred in removing, as shall be determined by two appraisers to be appointed one by the lessors and one by the lessee, upon the premises being vacated in accordance with the notice.” The second count was as follows : “ And the plaintiff says the defendants owe the plaintiff the sum of eight hundred dollars according to the account hereto annexed: H. W. Paine and Isaac F. Dobson, trustees, to Charles D. Pratt Dr. To commissions and services in negotiating lease of 17 Kingston St. Boston, to George K. Snow and George W. March, 20 years’ lease at $4000 per annum, total rent $80,000, at 1 per cent. $800.” Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows : The plaintiff hired the premises for the purpose of a boarding house, and the premises had been put in thorough repair by the defendants at the time the lease was given. The plaintiff entered upon the premises on the first day of the term, and continued to pay them rent, and proceeded at once to furnish the house throughout with carpets and furniture of various kinds, part of which was new. The time required to furnish the house ready for the reception of the boarders was about one month. The plaintiff also made some changes in the rooms, put up a partition and cut a door through, put in new furnace flues, a new floor, and painted the roof. On November 18, 1872, the lessors gave the lessee a written notice to vacate the premises in accordance with the above provision in the lease, and the plaintiff vacated the premises in accordance with said notice. Two persons were appointed as appraisers, who were unable to agree upon the sum to be paid the plaintiff, and the plaintiff and defendants were unable to agree upon any other appraisers. The plaintiff claimed as part of the expenditures included in the phrase “ fitting up the premises ” the expense in furnishing the house as well as the alterations made by him, and requested the judge to rule that the construction of the phrase “ fitting up the premises ” depends upon the circumstances of the case and the purpose for which they were to be used, and, the purpose being that of a boarding house, the plaintiff is entitled to recover for loss caused by his expenditures in furnishing the house with such furniture, including carpets, rugs, curtains, as well as alterations to the rooms, so as to render the house suitable for the reception of boarders ; that the phrase “ fitting up the premises,” under all the circumstances of the case, means furnishing all kinds of furniture as well as alterations to the building. The judge refused so to rule, but instructed the jury that the term “ fitting up the premises ” meant, all the expenses the lessee was at, during the term, in doing anything to the premises to adapt them to his use, and also the expenses of specially fitting any furniture to the premises, such as carpets, window curtains and the like ; that is, the labor and expense of fitting it, and the depreciation in value upon it. The plaintiff excepted to this ruling, and to the. refusal to rule as requested. The defendants requested the judge to rule that the words “ fitting up the premises ” included only the actual alterations and additions made to the' house by the lessee as hereinbefore recited, and did not include carpets or curtains, or any other furniture whatever ; but the judge ruled as before stated; to which ruling and refusal to rule as requested the defendants excepted. In support of the second count, the plaintiff’s evidence tended to show that the defendants employed him to procure for them a tenant, and agreed to pay him therefor the regular commission; this was controverted. The only evidence of value of services was that of certain real estate brokers, who testified that by the custom in Boston, the broker who negotiated a lease of twenty years, or of over three years, was entitled to receive from the lessor one per centum on the whole rent, stipulated to be paid by the lessee; that the commission on sale of real estate was one per cent, on price, and that the commission on lease of less than three years was five per cent, on one year’s rental. The defendants asked the judge to rule that this custom was unreasonable. But the judge instructed the jury that the custom was reasonable, and, if they found that the defendants agreed as alleged, they should find according to the custom ; but if they found the services rendered without an agreement as to compensation, then they should find the value of the services. The jury found on this count $500 ; the plaintiff claiming, according to the custom. To this ruling and refusal the defendants excepted. The report of an auditor, which was made part of the bill of exceptions, in respect to the second count, was as follows: “ On the whole evidence I do not find that the plaintiff has proved a special contract for regular brokers’ commissions for procuring the lessees upon a new lease. I do find that the plaintiff was engaged by the defendants to procure such lessees, and that in pursuance of the contract he brought the parties together, and the result was a lease for twenty years, at $4000 per annum for the first ten years, and $5000 per annum for the last ten years. I find that for this service the plaintiff is entitled to reasonable compensation, which reasonable compensation I find to be $500.”