Gordon v. Sales

• Decision Date: 12 February 1958
• Citation: 337 Mass. 35,147 N.E.2d 803
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Harold GORDON v. Berel H. SALES.

Page 803

147 N.E.2d 803

337 Mass. 35

Harold GORDON v. Berel H. SALES.

Supreme Judicial Court of Massachusetts, Essex.

Argued Dec. 5, 1957.

Decided Feb. 12, 1958.

No argument nor brief for plaintiff.

Sumner H. Smith, Lynn, for defendant.

Before WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.

WHITTEMORE, Justice.

The plaintiff sent the defendant, his tenant, a notice reading, 'You are hereby notified that your tenancy of the premises at 24 Hanover Circle [Lynn] is terminated as of January 30, 1956. Should you desire to remain a tenant, after said date the rent for the premises will be forty (40) dollars per week.' Thereafter the plaintiff recovered judgment in summary process proceedings, but execution was stayed. The defendant continued to occupy the premises and to pay, by check, the rent at the former rate of $18 per week for twelve weeks. The plaintiff certified the checks but had not cashed them at the time of the trial. This action to recover the fair rental value, under a declaration for use and occupancy, comes before us by the defendant's appeal from the decision of the Appellate Division, which, on report, determined that no prejudicial error had been committed on the issues presented. These issues were construed to be the correctness of certain rulings of the trial judge the substance of which is sufficiently indicated in following paragraphs.

The adequacy of the notice to terminate the tenancy (see Maguire v. Haddad, 325 Mass. 590, 91 N.E.2d 769) is not before us. The summary process proceedings made it res judicata that the tenancy was ended.

The certification of the checks did not require a ruling that a tenancy at will had been created even if the checks had been received weekly in advance which does not appear. Newman v. Sussman, 239 Mass. 283, 131 N.E. 926; Mastrullo v. Ryan, 328 Mass. 621, 624, 105 N.E.2d 469. While payment and acceptance of rent for a period in advance of occupancy, standing alone, are prima facie proof of the creation of a tenancy at will (Staples v. Collins, 321 Mass. 449, 451, 73 N.E.2d 729) and the fact of payment and acceptance is controlling if nothing else appears (Jones v. Webb, 320 Mass. 702, 71 N.E.2d 216) other facts may permit or require a finding that the landlord did not intend to waive his right to possession. In Newman v. Sussman, supra, a money order was received but not cashed and we said it was not evidence sufficient to warrant a finding of a new tenancy. In Mastrullo v. Ryan, supra, the acceptance of rent was accompanied by a statement that rights under a notice to quit were not waived and we held that whether there was a waiver was a question of fact.

The certification of the checks, we think, manifested an intent to have in the hand the equivalent of cash (see United States v. Commissioner of Banks, 254 Mass. 173, 175, 149 N.E. 883), but the holding of the checks manifested an intent to abide the event as to the amount due. There is no basis for implying an acceptance of the amount tendered as in settlement of a disputed claim. S...