Cassidy v. Welsh
| Decision Date | 29 May 1946 |
| Citation | 67 N.E.2d 226,319 Mass. 615 |
| Parties | JAMES ARTHUR CASSIDY v. WILLARD WELSH (and a companion case [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
March 4, 1946.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, & SPALDING, JJ.
Landlord and Tenant, Termination of tenancy, Surrender of lease Landlord's liability to third person. Evidence Conclusion of law, Cumulative.
A lessor who, upon nonpayment of rent, has neither entered to terminate the lease under a right reserved to him therein nor given a notice under G.
L. (Ter. Ed.) c 186, Section 11, to "determine the lease," has not legal control of the premises merely because of the nonpayment.
The mere fact that, on June 16, when, under the provisions of a lease, the lessor had a right to enter for nonpayment of rent by the lessee but had not done so, the lessor rented the premises to a third party "as of"
August 1 "retroactive starting" July 1, "provided" the lessee in possession "has vacated before that time," would not have warranted a finding of a surrender of the premises accepted by the lessor, or a finding that the lessor on July 3 was in control of the premises through a surrender.
A question, asked of a landowner, whether he knew, when he accepted a check from a certain person, that he had "created a tenancy," properly was excluded as calling for a conclusion of law.
No error appeared in the exclusion of certain evidence of a cumulative nature respecting the existence of an agency and the terms of a tenancy.
TWO ACTIONS OF TORT. Writs in the Superior Court dated January 5, 1942. The cases were tried together before Good, J.
M. E. Viola, for the plaintiffs, submitted a brief. R. B. Snow, for the defendant.
These two actions of tort are brought by minors to recover compensation for personal injuries sustained in the circumstances hereinafter recited. At the close of the evidence the defendant filed a motion in each case for a directed verdict on each count of the declaration, which was allowed subject to the exception of the plaintiff concerned. The plaintiffs having failed to order the preparation of the record for entry in this court, as required by G. L. (Ter. Ed.) c. 231, Section 135, as amended, the judge, being of opinion that his rulings and the plaintiffs' exceptions ought to be determined by this court, reported the cases for that purpose. See G. L. (Ter. Ed.) c. 231, Section 111.
The declaration in each case was in three counts, the first alleging that the defendant was the owner and in control of certain premises, and that the plaintiff was on the sidewalk near the premises and was injured by reason of the defendant's negligence in allowing an "oil or gas tank" on the premises to explode. The second count contained similar allegations as to ownership and control of the premises by the defendant, and further alleged that the defendant allowed certain persons to place oil and "gas" tanks on the premises, and that the plaintiff was injured by reason of the defendant's negligence in allowing an oil or "gas" tank which exploded to remain upon the premises for an unreasonable length of time. The third count is based on allegations of maintenance of a nuisance by the defendant on the premises by reason of which the injuries complained of were sustained. The defendant's answer in each case contained a general denial and an allegation of contributory negligence on the part of the plaintiff.
The evidence most favorable to the plaintiffs would have warranted the jury in finding the following facts: The premises involved, located at 101 Main Street in Medford, were owned by the defendant as trustee, and consisted of a vacant lot of land upon which there were certain "shacks." The defendant had leased the premises to one Gagliardi on November 26, 1940, for a term of one year. Pertinent provisions of the lease are these: "To hold for the term of one year from the first day of December nineteen hundred and forty yielding and paying therefor the rent of Fifty ($50.) dollars a month in advance commencing Dec. 1, 1940 and on the first of each month thereafter. . . . the Lessor may enter to view and make improvements, and to expel the Lessee, if he shall fail to pay the rent as aforesaid, or make or suffer any strip or waste thereof."
On June 1, 1941, Gagliardi was two months in arrears of rent. On June 16 the defendant rented the premises to one Smith through one Cahalan, a real estate broker, "as of Aug.
1st . . . retroactive starting July 1st. provided . . . tenant has vacated before that time.
" These terms were set forth in a letter of Cahalan to the defendant dated June 16, in which he thanked the defendant for "this business." On June 16 Smith gave Cahalan a check of W. F. Smith Inc. for $50 containing this notation, "Rent 105 [sic] Main St Aug 1 -- Aug 31." Cahalan retained $25 for his services and sent the defendant a check for the balance of $25. Smith telephoned the defendant and said that he had made some arrangement with Gagliardi to buy some of the latter's materials. As a result the defendant drove in an automobile to the front of the premises and parked the automobile there, but he did not leave the vehicle or enter upon the premises. He testified that he did not see the tank there, that he did not hear of the accident until July 15, that he did not make any contract or agreement with Gagliardi or any person representing him whereby he became no longer a tenant, and that he did not have him evicted from the premises. On June 19 Smith bought from Gagliardi the "house" that was on the land and the "property there." On June 20 he bought "some property that was inside the building." Smith testified that sometime in August he had a talk with the defendant about the "buildings on the land," and that he took possession on the first of October.
The jury would have been warranted in finding that on July 3, 1941, the plaintiffs were standing on the sidewalk in front of the premises; that "all of a sudden the violent explosion happened"; that as a result both of the plaintiffs were badly burned and seriously injured; that the explosion was that of a tank on the defendant's premises which had been used by Gagliardi for the storage of gasoline; that the tank had a storage capacity of five hundred fifty gallons; and that one of four openings in the tank was not closed and a person putting his nose close to that opening could smell gasoline fumes.
The plaintiffs rest their actions upon contentions that the defendant had legal control of the premises during the entire months of June and July, 1941, and that he had taken actual control of the premises on or before June 16, 1941. The plaintiffs' contention that the defendant had legal control of the premises at the time of the accident is based upon the fact that, under the terms of the lease to Gagliardi, the defendant had a legal right to take possession of the property on June 1 for nonpayment of rent and that therefore he was thereafter and at the time in question in legal control thereof. We do not concur in that reasoning. The right reserved to the defendant to take possession of the property for the nonpayment of rent was a condition and not a conditional limitation. Fifty Associates v. Howland, 11 Met. 99, 101-103. Markey v. Smith, 301 Mass. 64, 68, 71. While the lease could have been terminated by the defendant at his...
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