Conroy v. Toomay

• Decision Date: 27 February 1926
• Citation: Conroy v. Toomay, 255 Mass. 87, 151 N.E. 61 (Mass. 1926)
• Parties: CONROY v. TOOMAY.
• Court: Supreme Judicial Court of Massachusetts

255 Mass. 87

151 N.E. 61

CONROY

v.TOOMAY.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 27, 1926.

Report from Superior Court, Suffolk County; Nelson P. Brown, Judge.

Action of contract by Nora J. Conroy against James F. Toomay. Verdict was directed for defendant, and case was reported. Judgment to be entered on verdict.

F. L. Norton, of Boston, for plaintiff.

E. J. Flynn, of Boston, for defendant.

PIERCE, J.

This is an action on a covenant in a lease, dated July 29, 1916, to recover rent in advance for the month of November, 1918. The lease ran for a term of two years from September 1, 1916, and ‘thereafter from year to year, until one of the parties hereto shall, on or before the first day of July in any year, give to the other party written notice of his intention to terminate this lease on the last day of the following August in which case the term hereby created shall terminate in accordance with such notice.’ The answer is a general denial, eviction, and an oral agreement made by the parties between the date of execution of the lease and that on which either party, under its terms, could give notice of intention to terminate.

At the trial, there was evidence to warrant a finding that during the entire occupancy of the apartment there had been an insufficiency of heat and hot water; that the defendant had complained frequently thereof to the plaintiff and had received from her repeated assurances that she would attend to it, but that she always failed to do so; that in June, 1918, the defendant had a conversation with the plaintiff which the jury, in response to a question submitted by the court, found was substantially as follows:

‘She [the plaintiff] said, ‘If you will stay on, I will give you the amount of heat, the proper amount, and hot water,’ and I [the defendant] said, ‘Well, if you do that I will stay on, and if you don't do it, I will leave immediately.’ She [the plaintiff] said, ‘If I do not give you the proper amount of heat, you will not be bound by the lease or anything in it’ and I [the defendant] said, ‘If you promise me that I will stay,’ which I did do.'

There was further evidence to warrant a finding that, after this conversation and in reliance on the promise of the plaintiff then made, the defendant continued in occupation of the premises until October 21, 1918, when he wrote a letter (which the plaintiff received by mail) as follows:

‘I wish to notify you that on or about the first of November I will be obliged to vacate the apartment now occupied by me at 88 Naples Road, Brookline. It is impossible for me to continue to live there longer because of lack of heat. Mrs. Toomay has, at various times, notified you that she was unable to remain in her apartment because of the cold.’

Under date of October 23, 1918, the plaintiff sent and the defendant received the reply which follows:

‘I have just received your letter stating that you intend to vacate your suite on or about November 1, on account of lack of heat. Notwithstanding the unusual condition with regard to coal and janitor service during the past year I have furnished heat in accordance with the terms of your lease and shall continue to comply with said terms. I must require you to comply with the terms of your lease and pay rent for the remainder of the term. I am unwilling to consent to your vacating the premises on that date.’

The provision of the lease referred to in the letter of the plaintiff reads as follows:

‘It is understood and agreed by and between the parties to this lease, that if the premises are equipped with heating apparatus that the lessor shall furnish heat to the lessee at such times and in such quantities as said lessor shall see fit, and that the lessor does not guarantee any specific degree of heat, and that said lessor is not to be held accountable or liable in any way whatsoever for failure to provide heat, or for the mismanagement or negligence of lessee or his or her household, to properly regulate the valves in...