Dix v. Atkins

• Decision Date: 06 January 1881
• Citation: 130 Mass. 171
• Parties: John H. Dix v. John E. Atkins
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

130 Mass. 171

John H. Dix v. John E. Atkins

Supreme Court of Massachusetts

January 6, 1881

Argued November 9, 1880

Suffolk.

Exceptions overruled.

J. P Treadwell, for the defendant.

C. P Greenough, (R. M. Morse, Jr. with him,) for the plaintiff.

Morton, J. Lord & Soule, JJ., absent.

OPINION

Morton, J.

This is an action of contract upon the covenants of a written lease, to recover the rent from October 1, 1877, to January 1, 1878.By the lease, the plaintiff demises to the defendant the leased premises for the term of two years from October 1, 1875; and then follows this provision: "And it is hereby mutually agreed that if, before the end of the said term, neither of the said parties shall give to the other three months' notice in writing of his intention to terminate this lease at the end of the said term, the said lease shall continue in force for another term of one year, and in the same manner from year to year, until one of the said parties shall determine this lease by notice in writing in the manner aforesaid, which notice shall terminate with the end of the year for which the premises are then held; and provided that either party may terminate this lease by notice in writing given three months before the termination of any one year."

This provision cannot be construed as a mere covenant for renewal of the lease.No renewal was contemplated by the parties; no act was to be done by either party, but unless the notice provided for was given, the lease was to continue in force for another term of one year.It is not a mere agreement to give a lease for a term to commence in futuro, but, upon the failure to give the three months' notice required to terminate the lease, it continued in operation, and was a lease in presenti for the third year.Kramer v. Cook, 7 Gray 550.This was clearly the intention of the parties, and there is no rule of law which prevents carrying this intention into effect.The Superior Court, therefore, rightly refused to give the rulings requested by the defendant.^[*]

The defendant, having failed to give the notice necessary by the contract to terminate the lease, was liable under its covenants for the quarter's rent sued for, unless the plaintiff had accepted a surrender.This fact the jury found against the defendant, under proper instructions.

The only other question presented by the bill of exceptions is as to the ruling of the court refusing to...