Weston v. Trustees of Boston University
Weston v. Trustees of Boston University
Opinion of the Court
By this suit all parties seek the decision of the court as to whether certain notices in writing given by the defendant to the plaintiffs were effective to terminate a lease which had been granted by the defendant to one Gow and assigned by Gow to the plaintiffs. The suit involves the construction of the lease and the validity of the notices
The lease was dated February 18, 1938. It covered a portion of the land owned by the defendant on Commonwealth Avenue in Boston west of Ashby Street. It was to rim for a term of ten years with an option to the lessee to extend it for a further term of five years, all subject to termination by the defendant as hereinafter stated. It contained provisions for the erection by the lessee of a building on the premises to be used as a “Howard Johnson Restaurant” and for reimbursement by the lessor to the lessee of part of the cost of the building, based upon a depreciation rate of ten per cent a year, if the lease should be terminated within the first ten years. The plaintiffs or interests allied with them erected the building at a cost of about $64,000. Further substantial sums were expended for equipment, bringing the total cost to between $90,000 and $100,000. Business was begun there in the spring of 1938.
The part of the lease most important in this case is found in the item numbered 11 relating to termination. This item, so far as material, provides that the lessor shall have the right to terminate the lease by giving the lessee ninety days’ written notice, “provided always that the reason for such termination be attributable . . . to the commencement of the building program of the lessor for the construction of Boston University upon the site of which the demised premises are a part . . ..” Under date of February 25, 1946, and again in a different form of words under date of March 19, 1946, the defendant gave the plaintiffs notice of termination of the lease. The question in the case is whether under a proper construction of item 11 and in the circumstances actually existing the reason for termination by these notices or either of them was “attributable ... to the commencement of the building program of the lessor
It is plain that, when the parties made the right to terminate the lease and to oust the lessee or his assignees from a building to be newly built by them at great expense and from a potentially large and prosperous business depend upon “the building program of the lessor for the construction of Boston University,” they did not intend that those having the lessee interest should be subject to the mere whim or even to every possible legitimate need of the lessor. We should carefully inquire whether there did not exist at the time the lease was made a “program,” the substance of which was capable of ascertainment and which could serve as an external or objective standard in governing the rights of the parties. We think that the evidence clearly shows that such a “program” did exist. For many years Boston University had had a very large body of students who attended a number of different colleges, all forming parts, of the university but scattered in various locations in the city of Boston and in Cambridge. In general the accommodations of the several colleges were cramped and inadequate. The university as a whole suffered from this condition. It had long been a “hope” and a “dream” of the officers of the University to bring these colleges, except the Medical School, together in one large suitable location and to house them adequately in new, permanent, and beautiful buildings of noble and commanding architecture. Great efforts ■had been made in pursuance of this plan. Between the years 1920 and 1928, inclusive, a large tract of land had gradually been acquired practically on the bank of Charles River bounded northerly by Bay State Road and southerly by Commonwealth Avenue and extending in an easterly and
We come next to the events immediately preceding the giving of the notices in the early part of the year 1946. Up to that time no construction had been begun by the university west of Ashby Street and none was in immediate contemplation. But shortly before the first notice was given the university secured a contract from the United States government to do research work in connection with aerial
We are not inclined to construe too narrowly the word - “commencement” in the expression “commencement of the building program of the lessor for the construction of Boston University.” It may well be that the “commencement” includes the continuation of the program after it commences and that it is the true meaning of the lease that the lessor may terminate it whenever “the building program of the lessor for the construction of Boston University” reaches such a stage that in the reasoned and honest judgment of the lessor it needs the space occupied by the plaintiffs’ building for some use in connection with that program. .For the purposes of this decision we assume that this is so. But it is plain upon the evidence in this case that the building program of the lessor for the construction of Boston University, as hereinbefore defined, had not reached any such stage when the notices were given. At that time one building forming part of the program had been built, and that was east of Ashby Street. The next buildings in order were also to be east of Ashby Street. The plaintiffs’ building in no way interfered with these. The reason for termination was not “attributable” to any building constructed or contemplated east of Ashby Street. It was “attributable” to
It seems to us equally plain that neither the plaintiffs’ restaurant building nor the temporary, one-story, corrugated metal structure built on piers, nor both together, constituted any part of the “building program of the lessor for the construction of Boston University” which was made the test by the terms of the lease. The idea of using these buildings was wholly foreign to the great plan hereinbefore described. It was not even incidentally related to that plan. It was nothing but a temporary expedient to meet an unexpected and perhaps temporary situation. It was related to the government contract, perhaps with some indefinite thought of possible use for other projects. The government contract was never dreamed of when the lease was made. However desirable it may have been for the university to undertake this contract and possible other projects, and however consistent such action may have been with the larger objectives for which the university existed, the notices given in furtherance of such a purpose were not for a reason “attributable ... to the commencement of the building program of the lessor for the construction of Boston University upon the site of which the demised premises are a part . . .’’as that program was understood when the lease was made and adopted by the parties in the lease as the measure of their rights.
The final decree must be reversed and a final decree must be entered declaring that the notices and each of them were invalid and did not terminate the lease. The plaintiffs are to have their costs. A purpqrted “appeal” “from all the oirders and findings ... in the memorandum of the court on file” is dismissed.
So ordered.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.