This is a bill in equity filed on May 22, 1958, by the lessee (Burt) of space on the fifth floor of a building in Springfield (a) to enjoin the defendant (Seven Grand) from collecting rents under the lease, (b) to have the lease "rescinded and declared a nullity," and (c) to obtain damages for the failure of Seven Grand to perform the terms of
The following facts were found by the master or established by the pleadings. On July 1, 1955, Burt executed a lease
The master refused to reopen the hearings to hear objections and testimony in behalf of Seven Grand. A motion to
1. Where tenants lease space on an upper floor of an urban building, as here, to conduct business enterprises, it is unrealistic to say that furnishing light, heat (in our climate), power, and elevator service does not go to the essence of what the landlord is to provide, to substantially the same extent as the term for years in the space itself. Failure to furnish such services, at least if serious in extent and not excusable, deprives the lessee of a vital part of what the landlord knows the lessee must have in order to carry on his business. Such a failure constitutes a breach of the covenant of quiet enjoyment (see H.W. Robinson Carpet Co. v. Fletcher, 315 Mass. 350, 353; annotation 41 A.L.R.2d 1414, 1423, 1439) and "enables the lessee to recover the damages caused to him thereby and also provides the lessee with the defense of `constructive eviction' (if he removes from the premises)." See Powell, Real Property, § 227, p. 203; § 231, pp. 224-225; and also § 247. The doctrine of constructive eviction has been applied often. See Shindler v. Milden, 282 Mass. 32, 33-35; Westland Housing Corp. v. Scott, 312 Mass. 375, 381, 383; and cases collected in Stone v. Sullivan, 300 Mass. 450, 455; Corbin, Contracts, § 686, esp. at pp. 699-703; Williston, Contracts (Rev. ed.) §§ 890-892; Am. Law of Property, §§ 3.11, 3.51-3.52. Cf. Tiffany, Real Property (3d ed.) §§ 141-146.
The terms of this lease will be construed, so far as the language permits, to produce an equitable agreement between the parties. See New England Foundation Co. Inc. v. Commonwealth, 327 Mass. 587, 596. Here we infer, from the use of a New York law blank publisher's form by the original lessors who were inhabitants of New York, that the lease was prescribed by the landlord. To the extent that it may be ambiguous, we construe it more strongly against the landlord. See Watts v. Bruce, 245 Mass. 531, 534; Standard
2. In seeking what it refers to as rescission and that the lease be "declared a nullity" Burt asked little more (see Corbin, Contracts, § 1223, p. 921) than declaratory relief as to its rights. Its prayer, however, that the lease be rescinded, even if it has not abandoned the premises, can reasonably be construed as an election, if its contentions in fact should be sustained, to abandon because of a constructive eviction.
At law the tenant's abandonment of the leased premises must take place within a reasonable time (see Rome v. Johnson, 274 Mass. 444, 450-451; cf. Palumbo v. Olympia
The present record does not reveal whether abandonment of the premises has taken place and, if it has, when that occurred. The bill may imply that Burt's possession of the premises continued at least through the date of the bill. In view of the absence of findings about abandonment, the decree of unconditional rescission must be modified, after appropriate findings as to abandonment, to declare either (a) that Burt has been constructively evicted, if abandonment has in fact taken place, or (b) that Burt is entitled to abandon the premises within a reasonable time and to treat Seven Grand's conduct as a constructive eviction.
3. No issue of future damage (cf. Gromelski v. Bruno, 336 Mass. 678, 681) to Burt by reason of its constructive eviction has been argued. The only damages found are those for Seven Grand's past actions. The appropriate measure of damage thus is the difference between the value of what Burt should have received and the fair value of what it has in fact received. See Grennan v. Murray-Miller Co. 244 Mass. 336, 339; Daniels v. Cohen, 249 Mass. 362, 364; Parker v. Levin, 285 Mass. 125, 128; Corbin, Contracts, §§ 1105, 1108, 1114, 1115; McCormick, Damages, § 142, p. 586; Williston, Contracts (Rev. ed.) §§ 1404, 1455, et seq. See also Riley v. Hale, 158 Mass. 240, 246; Plumer v. Houghton & Dutton Co. 281 Mass. 173, 175-176; Bloom, South & Gurney, Inc. v. Mitchell, 289 Mass. 376, 378; Kurland v. Massachusetts Amusement Corp. 307 Mass. 131, 142; A & S Prod. Corp. v. Parker, 334 Mass. 189, 192; Am. Law of Property, §§ 3.51-3.52.
The provisions of the lease are established by the pleadings. Upon the lease and the master's subsidiary findings, the trial judge could reasonably conclude (a) that the rent
The master could reasonably conclude that the damage to Burt's machinery from cold, the loss of profits during suspension of operations, and the damage resulting from Seven Grand's failure to operate the elevator, reduced the value of what Burt in fact received from Seven Grand. See Parker v. Levin, 285 Mass. 125, 128. There is no showing that his ultimate conclusion upon the amount of damage was not justified by his subsidiary findings.
Because of the absence of findings about the date of abandonment one further uncertainty must be mentioned. If Burt did not abandon the premises within a reasonable time after the date of the bill, when Burt indicated its election to treat Seven Grand's defaults as a constructive eviction, Seven Grand is entitled to a further credit of the fair value, if any, of Burt's occupation of the premises after the date of the bill. If Burt paid any rent after the date of the bill, Burt is entitled to a further recovery of the amount by which that rent exceeded the fair value of its use and occupation during the period after May 22, 1958. Burt must give Seven Grand full credit for the benefits, if any, received by Burt after the date of the bill, for relief of this character should "be granted [only] upon such equitable conditions as ... [will] amply protect the rights of the defendant." See Bellefeuille v. Medeiros, 335 Mass. 262, 266.
4. The interlocutory decree confirming the master's report is affirmed. Solely to permit resolution of the uncertainty