Electrelle Co. v. Maguire

• Decision Date: 21 October 1913
• Citation: 102 N.E. 904,215 Mass. 550
• Parties: ELECTRELLE CO. v. MAGUIRE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

215 Mass. 550

102 N.E. 904

ELECTRELLE CO. v. MAGUIRE.

Supreme Judicial Court of Massachusetts, Suffolk.

October 21, 1913

COUNSEL

Roger D. Swaim and John M. Maguire, both of Boston (Hale & Grinnell, of Boston, of counsel), for plaintiff.

Jas. J McCarthy, of Boston, for defendant.

OPINION

LORING J.

This is an action for rent of a piano player, payable in advance at the rate of $25 a month for the 23 months beginning December 1, 1908, and ending October 1, 1910. The plaintiff credited the defendant with payments made during this period amounting to $242.85, making the net balance due (disregarding interest) $332.15.

The action came on to be tried in February, 1912, by a single judge sitting without a jury. At the trial the plaintiff put in evidence the record in a suit of equitable replevin brought by the same plaintiff against the same defendant some 5 months after the bringing of the action now before us. By a final decree made in that suit some 4 months before the trial was had in this action, the defendant had been ordered (1) to deliver to the plaintiff the piano player, and (2) to 'pay to the plaintiff as and for the rent specified in the fourth paragraph of the bill and interest thereon the sum of one hundred and thirty dollars and fifty-nine cents (§130.59) and that execution issue therefor.' The fourth paragraph of the bill in equity, so far as it deals with rent of the piano player, was in these words: 'The defendant, though requested, has not paid the rent therefor for certain months prior to November, 1910, for which the plaintiff has brought suit, and has not paid the rent for the months of November and December, 1910, and January, February, and March, 1911.'

The judge made the following findings in the action now before us: 'I find that 'rent therefor for certain months prior to November, 1910, for which plaintiff has brought suit' is not the rent specified in the fourth paragraph, and that 'the rent for the months of November and December, 1910, and January, February, and March, 1911,' is the rent specified, and that it is the latter period, and no other, that the decree covers.' 'I find for the plaintiff in the sum of $332.15, with interest from the date of the writ.'

The rent being payable monthly, the plaintiff had a right to bring an action for each unpaid monthly installment as it fell due. In the action now before us the plaintiff could recover for rent due for the...