Caruso v. Shalit
| Decision Date | 21 February 1933 |
| Parties | CARUSO v. SHALIT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Boston, Appellate Division; C. L. Carr, Judge.
Action by Christina Caruso against Abraham Shalit. Finding for defendant, and a report to the appellate division was dismissed, and plaintiff appeals.
Affirmed.
H. G. Spence, of Boston, for appellant.
B. Morrison, of Boston, for respondent.
This action of contract was brought in the municipal court to recover $75 rent of a store for the period from December 15, 1931, to January 15, 1932. There was a finding for the defendant and a report to the appellate division which was dismissed. The plaintiff appealed.
The defendant on December 15, 1931, was the tenant of a store, owned by the plaintiff, under an oral agreement to pay a monthly rent of $75 in advance on the fifteenth of each month. Peter Caruso, husband of the plaintiff, managed the property for her.
The evidence showed that on December 16, 1931, the store was substantially damaged by fire. The defendant testified that, as a result of the fire, the fire department tore the roof and tore everything apart, broke the windows and filled the cellar with water; that thereafter the defendant got no heat or light; that, without permission, the plaintiff brought fire appraisers into the store and mechanics to figure repairs; that Peter Caruso put some boards and canvas on the roof; that he asked the defendant to move out as soon as convenient and on January 4, 1932, demanded the key, which the defendant gave to him; that the plaintiff had mechanics there to start work; that between Christmas and New Year's Day she asked the defendant to move; that the defendant moved out January 4, and the men went in and made the repairs; that on January 4 the defendant gave the plaintiff the key to the padlock which the defendant had put on as the lock on the door was broken; that three or four days later he gave the plaintiff the keys to this lock, and that in February the plaintiff talked to the defendant about renting the place at $85. The testimony of Peter Caruso, which need not be recited, conflicted in many respects with the testimony of the defendant.
The trial judge made the following finding: ‘I find the premises were substantially damaged by fire; that before the end of the month the plaintiff entered with contractors to make repairs, thereby depriving the defendant of the use of the premises, and requested the defendant to move out so that he could make repairs, and that the defendant did move out, and I find that he was evicted.’
The plaintiff made requests for rulings, all of which were granted except the first and the seventh. The first ruling requested, ‘That upon all the evidence and the law the plaintiff is entitled to recover one month's rent in the sum of $75,’ was refused. With respect to the seventh ruling requested, ‘That the acceptance of the key to the store by the landlord from the tenant during the unexpired month of the tenancy and after the tenant has abandoned the premises does not constitute a waiver by the landlord of his right to be compensated to the full month's rent,’ the trial judge ruled that it was a ‘question of fact whether taking keys is a surrender.’
The only matter for our consideration is whether the trial judge dealt correctly with these requests for rulings. Reid v. Doherty, 273 Mass. 388, 173 N. E. 516.
1. The first request for a ruling was within the terms of Rule 35 of the Municipal Court of the City of Boston (1928) that ‘No review as of right shall lie to the refusal of a request for a ruling ‘upon all the evidence’ in a case admitting of specification of the grounds upon which such request is based unless such grounds are specified in the request, and then only upon the grounds so specified.' However, without relying upon this rule, we proceed to consider the question attempted to be raised by this request.
The ruling was refused rightly. No question of pleading is raised thereby (Ideal Leather Goods Co. v. Eastern Steamship Corp., 220 Mass. 133, 107 N. E. 525;Allen v. Kilpatrick, 277 Mass. 237, 241, 178 N. E. 511), and on the evidence the ruling could not properly have been made.
The evidence warranted a finding for the defendant. He was a tenant at will with monthly rent days. G. L. (Ter. Ed.) c. 183, § 3. The monthly rent was indivisible. Though the rent sued for was payable in advance on December 15, 1931, if the tenancy was terminated by surrender between...
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Taylor v. Beaudry
...September 1. The tenant claims this was error. He had the burden of proving when in fact he surrendered possession. Caruso v. Shalit, 282 Mass. 196, 199, 184 N.E. 460 (1933). He has not shown that the judge's finding was clearly erroneous. 7 The judge had a first-hand view of the presentati......
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