Gaertner v. Donnelly
| Decision Date | 31 December 1936 |
| Citation | 296 Mass. 260,5 N.E.2d 419 |
| Parties | GAERTNER v. DONNELLY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Appeal from Municipal Court of Boston, Appellate Division; Brackett judge.
Action by Cecilia C. Gaertner against Mary J. Donnelly, trustee. From an order of the Appellate Division, dismissing a report of rulings on defendant's request by a Municipal Court judge, who found for plaintiff, defendant appeals.
J. M. Maloney, of Boston, for appellant.
F. G Arey, of Boston, for appellee.
The plaintiff's declaration is on an account annexed for
The trial judge in the Municipal Court of the City of Boston found that ‘ prior to April 1, 1935, the plaintiff entered into a contract with the defendant * * * whereby the latter agreed to pay for the use of said roof for sign purposes the sum of $30, per month,’ that ‘ the amount to be paid’ was ‘ referred to in correspondence interchanged between the parties as ‘ rental" and that ‘ the defendant actually occupied said roof for sign purposes for the months of April and May, 1935 for the purposes agreed upon, without paying the monthly rental stipulated.’ He found for the plaintiff in the sum of $60 and reported his refusal of requests for rulings filed by the defendant to the Appellate Division where an order was entered dismissing the report.
The defendant's requests for rulings were to the effect that on all the evidence and the pleadings the plaintiff could not recover, specifying as the grounds for the requests that the relation of landlord and tenant did not exist between the parties, that it was necessary such a relationship should exist to enable the plaintiff to recover in an action for use and occupation of real estate and that the relation of the defendant to the plaintiff was that of a licensee and not that of a tenant.
The judge refused these requests, the report stating as a reason that had ‘ did not find the facts upon which said requests were predicated.’ There was no express finding that the relationship of landlord and tenant existed but it would seem that the denial of the requests for the reason given necessarily involved such a finding. In any event the requests were based on ‘ all the evidence and the pleadings' and the question whether on the evidence there could be a recovery under the pleadings was presented.
The declaration sought recovery for ‘ use and occupation’ (G.L. [Ter.Ed.] c. 231, § 147), a form of pleading which describes a claim for rent under a demise. Warren v. Ferdinand, 9 Allen, 357.‘ In order to maintain assumpsit for the use and occupation of land something in the nature of a demise must be shown, or some evidence given to establish the relation of landlord and tenant.’ Central Mills Co. v. Hart, 124 Mass. 123, 125; Glickman v. Commonwealth, 244 Mass. 148, 150, 138 N.E. 252.
The evidence in the present case did not warrant the...
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