Conroy v. Toomay

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: CROSBY
• Citation: Conroy v. Toomay, 234 Mass. 384, 125 N.E. 568 (Mass. 1920)
• Decision Date: 07 January 1920
• Parties: CONROY v. TOOMAY.

234 Mass. 384

125 N.E. 568

CONROY

v.TOOMAY.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1920.

Exceptions from Superior Court, Suffolk County; William Cushing Wait, Judge.

Action by Nora J. Conroy against James E. Toomay and trustee. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

Fred L. Norton, of Boston, for plaintiff.

Edward J. Flynn, of Boston, for defendant.

CROSBY, J.

This is an action to recover for rent of a suite in an apartment house according to the terms of a written lease; it was agreed that the defendant had paid all rent due up to and including the month of October, 1918, but that the sum alleged to be due on November 1, 1918, had not been paid. The lease was ‘for the term of two (2) years from the first day of September, in the year nineteen hundred and sixteen, until the last day of August, in the year nineteen hundred and eighteen (if then terminated as hereinafter provided), 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.’

At the trial the defendant offered evidence to show that the apartment house was heated by a steam heating apparatus in the cellar, under the exclusive control of the lessor; ‘that during the fall and winter and spring of 1918’ the landlord failed to provide the defendant with an adequate supply of heat and hot water to enable him and his family to live in safety in the apartment, and for this reason it was unfit for occupation; that during the period referred to the defendant complained to the plaintiff about the failure to supply heat and the plaintiff ‘continuously promised to do so’; that prior to the first day of July, 1918, and subsequent to the execution and delivery of the lease, the plaintiff orally agreed with the defendant that if the latter would not give a written notice required to terminate the lease on the last day of August, 1918, and would continue to occupy the apartment, she would furnish the apartment with the proper and necessary supply of heat and hot water, and in the event of her failure to do so would not hold him liable under the terms of the lease; that the defendant, relying on the agreement, did not give notice to terminate the lease but continued to occupy the premises until a few days before October 30, 1918; that on October 21, 1918, he notified the plaintiff in writing that it was impossible for him and...