Gunsenhiser v. Binder

• Decision Date: 18 October 1910
• Citation: 92 N.E. 705,206 Mass. 434
• Parties: GUNSENHISER v. BINDER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 434

92 N.E. 705

GUNSENHISER v. BINDER.

Supreme Judicial Court of Massachusetts, Suffolk.

October 18, 1910

Oct 18, 1910.

COUNSEL

Arthur Berenson and Bernard Berenson, for plaintiff.

John H Blanchard, for defendant.

OPINION

KNOWLTON C.J.

This is an action of ejectment brought under Rev. Laws, c. 181, § 1. The rights of the parties depend upon the construction of a lease made by the complainant's predecessor in title to the predecessor in title of the defendant. The lease contains the following provision: 'If the lessor, at any time after the expiration of the first five years of this lease, desires to sell the land, this lease may be terminated on thirty days' notice in writing of the lessor's determination, and the payment by the said lessor to the lessee of the sum of four hundred dollars as liquidated damages for the termination of said lease, and upon such termination the lessee shall remove any building within the said thirty days, and quietly and peaceably yield up the possession of the premises upon said payment of four hundred dollars.' By its own terms, the lease was to end on the happening of the contingencies mentioned therein, namely, the existence of a desire on the part of the lessor to sell the land and 30 days' notice in writing of this determination and the payment by him of $400 as liquidated damages for the termination of the lease. This was a conditional limitation of the lease, and not a mere covenant. Fifty Associates v. Howland, 11 Metc. 99; Shaw v. Appleton, 161 Mass. 313, 37 N.E. 372; Munigle v. Boston, 3 Allen, 230-232; O'Connor v. Daily, 109 Mass. 235. All the facts were proved that were necessary to show the termination of the lease by its own limitation.

In order to constitute a desire to see or convey, within the meaning of the language of the lease, it was not necessary that the complainant should enter into a binding agreement to convey. Nor was an entry upon the land by the complainant necessary. The desire to sell or convey that was proved, the notice in writing that was given, and the tender of the $400 in money, were all that was required. There was no error in the refusal to give the rulings requested on these points. Knowles v. Hull, 99 Mass. 562-564; De Friest v. Bradley, 192 Mass. 346, 78 N.E. 467.

By the express terms of the statute a termination of a lease in any manner gives the landlord a right to recover in this form of...