Jones v. Webb

• Decision Date: 30 January 1947
• Citation: 320 Mass. 702,71 N.E.2d 216
• Parties: JONES et al. v. WEBB.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

320 Mass. 702

71 N.E.2d 216

JONES et al.

v.WEBB.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 30, 1947.

Exceptions from Superior Court, Suffolk County; Beaudreau, Judge.

Action by William P. Jones and another against Samuel L. Webb to recover possession of an apartment. The judge found for plaintiffs, and defendant brings exceptions to the denial of certain of his requests for rulings.

Exceptions sustained, and judgment for defendant.

Before FIELD, C. J., and LUMMUS, RONAN, WILKINS, and SPALDING, JJ.

A. M. McDonough, of Boston, for plaintiffs.

J. C. Webb and I. N. Samuels, both of Boston, for defendant.

WILKINS, Justice.

This is an action to recover possession of a second story apartment at 33 Baldwin street, Boston. G.L. (Ter.Ed.) c. 239, § 1, as amended by St.1941, c. 242, § 1. The judge found for the plaintiffs ‘for possession.’ The defendant excepted to the denial of certain of his requests for rulings. Two of these were: ‘2. On all the evidence the law requires a finding for the defendant.’ ‘5. The acceptance of rent by the plaintiffs after January 1, 1945, was an admission of the continuance of the tenancy and a waiver of the notice.'

The facts material to this question are not in dispute. The premises had been occupied by the defendant as tenant of the The Equitable Life Assurance Society of the United States, first, beginning October 1, 1937, under an oral tenancy at will, and later, beginning May 1, 1941, on substantially the same terms under a written ‘monthly agreement,’ which provided for a rental of $33 payable on the first day of each month in advance and for termination ‘on the day of expiration of a designated monthly term’ by either party on thirty days' written notice. By deed of August 4, 1944, The Equitable Life Assurance Society of the United States conveyed to the plaintiffs. This was a termination of the tenancy. Strycharski v. Spillane, 320 Mass. 382, 384, 69 N.E.2d 589, and cases cited. And both parties so concede in their arguments before us.

The plaintiffs, however, contend that the judge was warranted in finding that it was the defendant who became a tenant of the plaintiffs thereafter by reason of his staying on with their consent and the payment and receipt of rent at the same rate and upon the same rent days as before the sale. Benton v. Williams, 202 Mass. 189, 192, 193, 88 N.E. 843. The defendant, on the other hand, contends, among other things, that the tenant subsequent to the sale was the defendant's son, Stanley L. Webb. whose checks in payment of the rent were received and cashed. It is unnecessary to detail the facts which first caused the plaintiffs to send a written notice of termination to the son on August 15, 1944, and another such notice to the defendant under date of November 26, 1944. The plaintiffs rely here upon the latter notice, which was to vacate ‘on or before January 1st, 1945,’ and for the purposes of this case we assume it to have been a valid notice. Thereafter monthly checks drawn upon the First National Bank, Aberdeen, Maryland, each for $33, payable to the plaintiffs, bearing the printed name at the top of ‘Stanley L. Webb,’ and signed ‘Stanley L. Webb Power of Atty. Goldie R. Webb’ (who was his mother and the wife of the defendant), were received, indorsed, and negotiated by the plaintiffs. The first such check relating to a period subsequent to the expiration of the notice was dated December 22, 1944, bore on the back above the plaintiffs' indorsements‘Rent for the month of January to February 1-1945 Suite II. 33 Baldwin St. Mattapan, Mass.,’ bore under date of January 19, 1945, the stamped indorsement of a Boston bank, and showed the perforated indorsement of the drawee bank under date of January 23, 1945. The next two checks were dated January 31, 1945, and February 23, 1945, and respectively bore above the indorsements the statements that they were in payment of the February and March rent. Each was deposited for collection in a Boston bank and was paid by the drawee bank before the end of the month the rent for which each purported to pay. The writ in the present proceedings was dated March 13, 1945. The next check was dated March 29, 1945. Above the plaintiffs' indorsements appeared, ‘Within check is given & accepted in pay't of rent of premises known as 33 Baldwin St. Mattapan 26, Mass. for rent period beginning April 1 '45 ending April 30, 1945.’ The check bore the paying teller's stamp of a Boston bank dated March 31, 1945...