Berenson v. Mahler

• Decision Date: 31 July 1950
• Parties: BERENSON v. MAHLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

326 Mass. 305

93 N.E.2d 740

BERENSON v. MAHLER.

Supreme Judicial Court of Massachusetts, Norfolk.

July 31, 1950

Argued March 7 1950.

Edward M. Dangel L. E. Sherry and C. George, all of Boston, for plaintiff.

L. G. Stone Boston, for defendant.

Before QUA, C. J and LUMMUS, RONAN, WILKINS and COUNIHAN, JJ.

QUA, Chief Justice.

In this action for deceit the plaintiff appeals from an order of the Superior Court sustaining the defendant's demurrer.

The allegations of the declaration are in substance that on April 28, 1948, the plaintiff was a tenant of an apartment in Brookline of which the defendant was a co”wner; that the plaintiff's tenancy was governed by the housing and rent act of 1947, as amended; that by letter dated April 28, 1948, the defendant notified the plaintiff to quit and deliver up the premises at the end of the rent period commencing June 1, 1948; that the letter stated the reason for the notice to be that the defendant desired the premises for the use of her mother; that, in reliance upon the representation contained in the letter that the defendant desired the premises for the use of her mother, the plaintiff made efforts to secure other accommodations, but concluded that it would be impossible for him to secure at any reasonable figure an apartment similar to that then occupied by him, and that it would be necessary for him to purchase a house; that, in further reliance upon said representation and in the belief that he could be compelled by court action to deliver up said premises to the defendant, the plaintiff incurred great cost and expense in purchasing a house and having it repaired for his use and in moving to it; that, in further reliance upon said representation and in the belief that he could by court action be evicted from his apartment, the plaintiff entered into an agreement for judgment in an action brought by the defendant against the plaintiff in a District Court, whereby it was agreed that judgment might be entered in favor of the present defendant for possession of the premises, and that execution would issue on December 31, 1948; that on or about November 1, 1948, the plaintiff yielded up possession to the defendant; that at the time of sending said letter the defendant did not in truth and in fact intend to secure occupancy of the apartment for the use of her mother but knowingly made this false representation to the plaintiff with the intent of deceiving him and of wrongfully and illegally obtaining possession of the apartment for her own purposes; and that the plaintiff was in fact deceived and in reliance upon said false representation was induced to surrender the apartment to the defendant. 'All to the plaintiff's damage as alleged in his writ.'

The Housing and Rent Act of 1947, Act of June 30, 1947, 61 U.S.Sts. at Large, 193, in § 209(a), as amended in subdivision (2) by Act of March 30, 1948, § 204(a), 62 U.S.Sts. at Large, 98, 50 U.S.C.A.Appendix, § 1899, provided in part, 'No action or proceeding to recover possession of any controlled housing accommodations * * * shall be maintainable by any landlord * * * unless--* * * (2) the landlord seeks in good faith to recover possession of such housing accommodations for his immediate and personal use and occupancy as housing accommodations, or for the immediate and personal use and occupancy as housing accommodations by a member or members of his immediate family * * *.' The 1948 act in § 204(e) also adds a provision requiring the landlord to notify the tenant of the purpose for which he desires to recover possession. 62 U.S.Sts. at Large, 99.

If, as seems altogether probable, judgment was in fact rendered in the action for possession in favor of the present defendant, the case would fall within the authority of a number of recent decisions holding that the purpose of the landlord in dispossessing the tenant is a matter for determination in the original action for possession and is in fact determined there, if the judgment is for possession, and cannot be litigated anew in an action for deceit. Gabriel v Borowy, 324 Mass. 231, 236, 85 N.E.2d 435; Sher v. Perlman, 324 Mass. 390, 392, 86 N.E.2d 902; Noyes v. Shanahan, 325 Mass. 601, 604, 91 N.E.2d 841; David v. Fayman, 273 A.D. 408, 78 N.Y.S.2d 188, affirmed...