Fillebrown v. Hoar

• Decision Date: 29 June 1878
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Thomas G. Fillebrown v. Reuben S. Hoar & another

124 Mass. 580

Thomas G. Fillebrown v. Reuben S. Hoar & another

Supreme Court of Massachusetts

June 29, 1878

[Syllabus Material]

Middlesex. Tort against Reuben S. Hoar and Wallace Handley for breaking and entering the plaintiff's close and ejecting his goods and family. Trial in the Superior Court before Rockwell, J., who allowed a bill of exceptions in substance as follows:

The close in question consisted of a house, barn and land, which the plaintiff occupied as the tenant of the defendant Hoar, under a written lease under seal, for the term of one year from May 1, 1875, which provided that the lessee should pay $ 48 a year rent, in equal quarterly payments, beginning on August 1, 1875; and that in case of a breach of any of the covenants to be observed on the part of the lessee, the lessor might, without any notice or demand, enter upon the premises and thereby determine the estate, and expel and remove, forcibly if necessary, the lessee and those claiming under him, and their effects.

It appeared in evidence that on April 3, 1876, the defendants went to the house of the plaintiff, and, the plaintiff being absent from home, set out of the house, into the yard and barn, the plaintiff's furniture; that while they were so doing, the plaintiff's wife and children left the house upon request of the defendants no force being used, and walked about one half mile to a depot and took the cars, and went some four or five miles to the house of the plaintiff's father, where they remained; that the plaintiff knew nothing of this act of the defendants until the evening of April 5, when he arrived home and found his goods and family out, and went a few rods to a neighbor's house and stayed over night, and on the morning of April 6 went to his father's house, where his family was, and there remained.

The defendants justified their acts on the ground of a breach of the covenants in the lease to pay rent, contending that there was due and unpaid six dollars on the second quarter and the whole of the third quarter, amounting in all to $ 18.

The plaintiff contended, and offered evidence tending to show, that, soon after the commencement of the term, he was evicted by paramount title, by one Floyd, of a portion of the demised premises, which he had planted, and that on that account he was entitled to a proportionate diminution of the rent; that he had made certain repairs upon the premises, under an agreement with the defendant Hoar that the fair value thereof should be allowed in the payment of the rent, and that in these two ways, together with the money paid, he had paid all the rent, and none was due on April 3; but it appeared that there had been no presentation of such repairs to the lessor, and no settlement, or allowance, or application to the rent thereof, and that the lessor denied the repairs, and the amount thereof, and any agreement to allow for them, and any knowledge that any had been made.

The plaintiff claimed damage for the removal of the furniture, and for injuries and sickness of himself, wife and children, contending that his wife and children were made sick by the exposure after leaving the house, and that he became sick some days after reaching home, by reason of the eviction. The defendant Handley only acted with Hoar at his request, to assist him.

The plaintiff's counsel were allowed, against the defendant's objections, to inquire of the plaintiff's wife, what was the effect of the act of the defendants upon her health and the health of her infant child, to which she answered that they took cold and were sick; and also to inquire of the plaintiff, "What was your health on Thursday morning, April 6, and after, compared to what it was when you went away from home on the morning of April 3?" to which he answered, "Very miserable, not able to sit up;" and also whether the children of the plaintiff had shoes, and whether he brought home shoes for them on April 6, to which he answered that they had no shoes; and also, what was the state of the health of the other minor children of the plaintiff after the lessor took possession on April 3. This evidence was offered by the plaintiff only for the purpose of showing injuries to the plaintiff himself, through his feelings or otherwise, and was admitted only for that purpose, and the jury were so instructed.

The defendants asked the judge to instruct the jury as follows:

"1. If, at the time of the entry by the lessor to regain possession of the estate, any rent was due and unpaid, the lessor had the right to enter and dispossess the lessee and take possession of the premises.

"2. If the lessee had a claim against the lessor for repairs on the premises, equal to the amount of rent due, that would not take away the lessor's right to enter as aforesaid unless it was agreed between the lessor and lessee that such claim should be in payment of the rent under the lease to the extent of the amount due thereon, and unless there was enough due thereon to counterbalance the rent due.

"3. Eviction of a portion of the premises, under a paramount title not acquired under the lessor, does not relieve the lessee from the payment of rent according to his covenants, nor does it authorize an apportionment of the rent.

"4. If, when the rent came due in February, the lessor refused to allow anything for the repairs done by the lessee on the premises, then the lessor would have the right under the lease to enter and regain possession of the premises, although the lessee had a claim against the lessor for repairs of the premises, equal to the amount of rent due, which he could enforce against the lessor in an action at law.

"5. If the third quarter's rent was due and payable some days before the day when the lessor entered and took possession then the lessor had the right to enter and...