Emmons v. Scudder

• Decision Date: 27 June 1874
• Citation: 115 Mass. 367
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John L. Emmons, guardian, v. Daniel Scudder & others

115 Mass. 367

John L. Emmons, guardian, v. Daniel Scudder & others

Supreme Court of Massachusetts

June 27, 1874

[Syllabus Material]

Suffolk. Contract on an account annexed for rent of store No. 54 and 56 Broad Street, Boston, from October 1, 1869, to January 1 1870, and for the taxes assessed by the city of Boston on said store, May 1, 1869.

At the trial in the Superior Court before Putnam, J., the jury found a verdict for the plaintiff, and the defendants alleged exceptions in substance as follows:

It appeared in evidence that the store in question was formerly owned by George Odin, who died in 1866, and that on his decease it descended to his niece, Harriet L. Odin, a minor of whom the plaintiff was duly appointed guardian.

On July 1, 1864, Odin leased to the defendants, for the period of five years, the lower floor of the premises and cellar under the same, numbered 56 Broad Street, for the rent of $ 500 per year, the lessees being exempt from paying taxes, and restricted from underletting. The lessees took possession of said premises, and remained therein during the term of said lease, and afterwards to October 23.

During the term of said lease and subsequently, the defendants occupied only the first floor and cellar, numbered 56 Broad Street, the premises above forming part of the same building but numbered 54 Broad Street, were occupied by D. Leland & Co. as tenants at will of said guardian, until July 1, 1869; and after said July 1, in the manner hereinafter stated.

The premises, in the spring of 1869, were very much out of repair and in bad condition, especially that portion occupied by Leland & Co.

The defendants offered evidence tending to show, that in June, 1869, or some time before the expiration of the written lease to them, that firm and Leland & Co. both had a conversation with the plaintiff in regard to a renewal of their tenancies; that he said he preferred but one tenant of the whole estate, and finally agreed with the defendants that he would put said premises, from top to bottom, in good repair, so that the defendants and Leland & Co. should be pleased therewith, and that he would give to the defendants a written lease of the whole of the premises for the period of five years, from July 1, 1869, (the expiration of the former lease), for the rent of $ 1,600 per year, and all taxes, and with a right to underlet, to which agreement said firm assented. The evidence was conflicting as to whether the agreement of the plaintiff was to repair the whole building, or only the portion occupied by the defendants; but, with this exception, it was admitted that such an agreement was made.

After making said agreement, the plaintiff notified Leland & Co. that he had agreed to lease said store to the defendants; and Leland & Co. thereupon, and before July 1, when their rent became due, agreed with the defendants that they would remain in store No. 54 as their tenants and at an advanced rent payable monthly, the defendants agreeing that the premises should be put in repair; and it was in evidence that Leland & Co. remained in the premises, No. 54 Broad Street, after July 1, and paid the defendants one or two months rent therefor, at the advanced rate, but finally refused to pay rent after that because repairs had not been made. The plaintiff after July 1 had never demanded rent of them, or treated them as his tenants, nor did Leland & Co. consider themselves as his tenants.

On or about July 1, 1869, the plaintiff left with the defendants a written lease according to the terms of said agreement, excepting that the clause prohibiting underletting was not erased. Nothing was said in it about repairs. One of the members of that firm gave the lease a hasty examination, and laid it one side; but neither he nor his firm requested the plaintiff to erase therefrom the printed clause restricting them from underletting, nor ever notified him that said lease was in any way unsatisfactory to them. The lease was never executed. It was in evidence that the plaintiff made repairs and alterations in the lower store, numbered 56 Broad Street, to the satisfaction of the defendants, which were completed about August 1; but, though several times requested by the defendants after July 1, he refused to make repairs on the upper store, contending that he had never agreed to do so.

There was evidence tending to show that on or about October 2, 1869, the plaintiff demanded $ 400 of the defendants, it being for one quarter's rent of the whole estate at the advanced rate, which they refused to pay, because the plaintiff had not repaired the premises occupied by Leland & Co. During the conversation between them, the plaintiff said that he had been offered $ 1,800 per year for said premises, and that they, the defendants could not remain in said premises, if they did not pay said rent; and thereupon they paid said rent under protest, and continued to occupy the store until October 23, 1869, when they left, having given notice to the plaintiff of their intention so to do on October 18.

The defendants requested the presiding judge to instruct the jury, that if the plaintiff agreed to repair all of said premises, and to give them a lease in writing for a term of years, and failed to keep said agreement in any respect, either failing to repair, or to give them a written lease with the right to underlet, the defendants would not be liable to pay rent after July 1, 1869; that if they held over after the expiration of said old written lease, they were tenants at sufferance, of store No. 56 Broad Street, at the old rate of $ 500 per year, and were not bound to give notice in writing of their intention to terminate said tenancy; that under the facts disclosed in the case, the defendants were only liable for rent of store No. 56, at the rate of $ 500, for the period of twenty-three days from October 1.

The court, instead of the instructions asked for, gave, upon those points, the following instructions to the jury: "If no new agreement was made, the defendants would be considered as holding over and would be merely tenants at sufferance, having the right to leave as they did, October 23, 1869, and paying only pro rata rent from July 1, 1869, to October 23, 1869, at the rate of the old lease, $ 500 per year.

"As the plaintiff contends they were tenants at will, he must satisfy the jury that there was some new agreement, expressed or implied, that the defendants should take the whole premises, at the rate...