Hastings v. Lovejoy
| Decision Date | 22 October 1885 |
| Citation | 2 N.E. 776,140 Mass. 261 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Bridget E. Hastings & another v. Arthur B. Lovejoy |
Contract against the surviving partner of the firm of J. Lovejoy and Sons, to recover a balance of rent reserved in a lease under seal of certain premises for the term of ten years from June 24, 1873, at an annual rental of $ 12,500, payable quarterly on the twenty-fourth days of March, June, September, and December in each year, respectively. Trial in this court before Field, J., who reported the case for the determination of the full court, in substance as follows:
The only question in the case related to the four years from December 24, 1876, to December 24, 1880, inclusive, the plaintiffs claiming to recover an alleged balance due for these years, and the defendant contending that the plaintiffs had been fully paid all rent due during said four years.
The testimony of the defendant was in substance as follows: The premises were occupied by him for the sale of carpets. In the fall of 1876, business having been dull and for a time having been conducted at a loss, he sought the plaintiffs, and represented to them that his business was unprofitable, that he was unable to pay the full rental of the premises, and stated to them that he should fail in business unless the rental was reduced. The plaintiffs thereupon verbally agreed to reduce the rental for the term of one year, beginning with December 24, 1876 (the commencement of a quarter under the lease), by the sum of $ 2000, so that the same should be $ 10,500 per annum for that year. This reduced rent the defendant paid, when or after it became payable during that year, by negotiable checks, and the plaintiffs received the same without objection, and gave receipts for the same each quarter in the manner following: At each quarterly payment, the sum of $ 2625 only was paid by the defendant, according to said verbal agreement.
In the fall of 1877, the defendant was desirous of taking a partner into the firm, and putting in more capital, and informed the plaintiffs that business was still dull, and he was still unable to pay the full rental of the premises, and that he should be obliged to fail unless the rent was reduced for the ensuing three years. The defendant also offered to prove that he said to the plaintiffs, that, if the rent should be reduced by the sum of $ 2500 per annum, he would take in a partner for the ensuing three years, and would borrow the sum of $ 40,000, and put the same into the business. The defendant testified that the plaintiffs thereupon agreed to reduce the rent for the three years commencing December 24, 1877, by the sum of $ 2500 per annum, so that the same should be $ 10,000 per annum for those years.
The defendant offered to prove that he thereupon admitted said partner, and raised said sum of $ 40,000 and put it into the business; and testified that he paid this reduced rental, when or after it became payable, for the quarter ending March 24, 1878, by his negotiable check, and the plaintiffs gave him the following receipt therefor: But no receipt in full was ever given thereafter.
No evidence was offered that the plaintiffs ever agreed to accept the new partner or the new firm as a tenant, or claimed to hold for the rent any persons except those who executed the lease.
In June, 1878, the first-named plaintiff filed a bill in equity against her husband, the other plaintiff, charging certain irregularities on his part in the management of these premises, and a receiver was appointed, who continued to manage the premises and collect the rents thereof from June 24, 1878, to January, 1880.
During this time the defendant paid, by negotiable checks or notes, the reduced rental to the receiver, after but not as it became payable, with the exception of the quarter ending December 24, 1880 (which he paid to the plaintiffs), the plaintiffs upon each payment authorizing the receiver to receive such reduced rental; but no receipts in full were given therefor.
At the termination of the receivership, the receiver filed his account, containing the items of rental received, and the same was assented to by the plaintiffs' counsel, and allowed by this court.
After the termination of the receivership, the defendant paid to the plaintiffs, by negotiable checks, the reduced rental only, after but not as it became payable, until the termination of said term of three years, which expired on December 24, 1880, but no receipts were given therefor.
The plaintiffs received the amounts so paid without objection, and without demanding any further payment of rent, or demanding the full rent reserved under the lease, until on or about October 1, 1880, when they contended that the defendant should pay full rent for the year 1880, and presented a bill for the same.
After December 24, 1880, the defendant resumed the payment of the full rental reserved in the lease. The lease expired June 24, 1883, and the defendant thereupon surrendered the premises.
The judge ruled, against the objection of the defendant, that the above evidence and offer of evidence, if received, and if believed by the jury, would not authorize a finding that the plaintiffs were not entitled to the balance of rental during these four years, being the difference between the rent paid by virtue of the verbal agreement and the rent reserved in the lease; namely, the sum of $ 2000 for the first year and the sum of $ 2500 for each of the other three years; and, the defendant stating that he had no other defence to the action, the judge directed the jury to return a verdict for the plaintiffs for the full amount claimed.
If the ruling was correct, the verdict was to stand; otherwise, a new trial to be granted.
New trial granted.
G. A. Torrey, (T. F. Nutter with him,) for the defendant.
A. E. Pillsbury, for the plaintiffs.
Gardner, J., absent. C. Allen, J.
While recognizing and giving effect to the rule of law, that a creditor cannot bind himself by a simple agreement to accept a smaller sum in lieu of an ascertained existing debt of a larger amount, because such agreement is without consideration, courts have nevertheless often declared that the rule is not to be extended beyond its precise import and, especially if a consideration for such agreement is found to exist, of which the lawcan take notice, that courts will not inquire into its adequacy. Langdon v. Langdon, 4 Gray 186. Brooks v. White, 2 Met. 283. Simmons v. Almy, 103 Mass. 33. The question what will constitute a sufficient consideration for such agreement has been discussed in many cases. See Fitch v. Sutton, 5 East, 230; Brooks v. White, ubi supra; ...
To continue reading
Request your trial