Ames v. Beal

• Decision Date: 13 September 1933
• Citation: Ames v. Beal, 284 Mass. 56, 187 N.E. 99 (Mass. 1933)
• Parties: AMES et al. v. BEAL et al.
• Court: Supreme Judicial Court of Massachusetts

284 Mass. 56

187 N.E. 99

AMES et al.

v.BEAL et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 13, 1933.

Appeal from Municipal Court of Boston, Appellate Division; W. Bolster, Chief Justice.

Action of contract in the Municipal Court of the City of Boston by Oliver Ames and others, trustees, against Henry W. Beal and another. Finding for plaintiffs in the sum of $1,477.87. The case was reported to the Appellate Division. From an order dismissing the report, defendants appeal.

Order affirmed.

J. G. Bryer, of Boston, for plaintiffs.

R. Donovan, of Boston, for defendants.

DONAHUE, Justice.

The defendants jointly executed two leases by which the plaintiffs demised to them certain office rooms in the Ames Building in Boston. The original declaration in two counts sought to recover ‘for rental of premises * * * under an indenture of lease’ for a period several years after the expiration of the term stated in the lease. No further express agreement was entered into between the plaintiffs and the defendants either individually or jointly after the execution of the leases but upon the expiration of their terms the defendants continued to occupy the premises as they had done before, that is the defendant Clarke occupied a part of the premises, the defendant Beal another part and a certain part was occupied by the two in common. One of the defendants testified that when the terms stated in the leases expired ‘we ran on under the old arrangement.’ Both before and after that date the payments of rent were made by checks of the defendant Beal. The books of the plaintiffs bore the entry ‘After January 1, 1928, [the time of the expiration of the term stated in the leases] continue as T. A. S.’ which initials a witness translated as meaning ‘tenants at sufferance.’ The leases provided for the payment of the stated rent ‘during said term and at that rate for such further time as the lessee party shall hold the said leased premises' and contained the covenant of the defendants ‘to pay unto the lessor party * * * for and during said term and for such further time as the lessee party shall hold the said premises * * * the said installments of rent in the manner aforesaid.’ The provisions of the leases were in general the same and for convenience we refer to them as if there were but one lease although different premises were demised in each lease.

The trial judge in the Municipal Court of the City of Boston found that ‘after the term of the lease expired, the defendants holding on and paying rent at the old rate without notice of any change or parcelling of the premises became joint tenants at will of the entire premises.’ He ruled that there was a variance between the allegation in the declaration and the proof, gave the plaintiffs permission to amend their declaration within ten days by basing their claim on use and occupation and ordered that in the event such amendment should be made judgment be entered for the plaintiffs in a stated amount and that otherwise judgment be entered for the defendants. The permitted amendment was seasonably made by the plaintiffs.

At the request of the defendant Clarke the judge reported to the Appellate Division his denial of that defendant's requests for rulings, and at the request of each defendant reported the allowance of the plaintiffs' motion to amend their declaration. Before the Appellate Division the defendants for the first time contended that there was an error in the computation of damages. Since that was not one of the questions reported and the evidence relevant thereto was not fully reported, the Appellate Division was in doubt whether the finding was excessive and if so in what amount. The appellate Division entered the following final order: ‘If the parties, before October 15, 1932, can agree to the amount, judgment may be for such amount; or before said date the parties or either of them may apply to the trial judge, and if he is in possession of sufficient evidence to determine the question (see Conway v. Kenney, 273 Mass. 19, 172 N. E. 888), judgment may be for the amount he finds due; otherwise there must be a new trial as to damages only.’ Within the time specified the judge filed a revision and a reduction of the amount of damages as earlier found. Neither party now contends that there was error so far as concerns the method of the final computation of damages. From the final decision of the Appellate Division both defendants claimed an appeal.

1. If the defendants had merely continued to hold possession of the premises after the expiration of the term stated in the lease and had made no contract as to the character of their occupancy thereafter they would have been tenants at sufferance. Warren v. Lyons, 152 Mass. 310, 25 N. E. 721,9 L. R. A. 353. That status would not have been affected by the covenant in the lease that the defendants would pay rent if they continued to hold the premises after the lease expired. Edwards v. Hale, 9 Allen, 462. There was here no express contract of the parties creating a new relationship when the relationship created by the contract of lease ended with the expiration of its stated term. But what would otherwise be a tenancy at sufferance ‘can be converted into a tenancy at will by the implied agreement of the parties, the existence and terms of which may be inferred from their conduct.’ C. A. Spencer & Son Co. v. Merrimac Valley Power & Buildings Co., 242 Mass. 176, 180, 136 N. E. 391, 393. The trial judge found that the defendants became tenants at will of the premises described in the lease. When the tenancy under the lease ended the defendants remained in possession and nothing was said by the parties as to the character of the occupancy. For over three and a half years the defendants continued to occupy the premises in the same manner as before and rent at the same rate and at the same times as required by the lease was paid to the plaintiffs. This was sufficient to warrant the finding that there was an implied agreement creating a tenancy at will. Benton v. Williams, 202 Mass. 189, 192, 88 N. E. 843;Moskow v. Robinson, 276 Mass. 16, 18, 176 N. E. 603. It does not appear when, by whom and under what circumstances the entry ‘After January 1, 1928, continue as T. A. S.’ was made on the plaintiffs' books, or that the existence of that entry was communicated or known to the defendants. Even if we assume that it represented the plaintiffs' belief at some time as to the character of the tenancy it does not control the decision of the question whether the...