Kimball v. Cross

• Decision Date: 22 January 1884
• Citation: 136 Mass. 300
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Samuel Kimball & another v. Henry M. Cross

136 Mass. 300

Samuel Kimball & another v. Henry M. Cross

Supreme Court of Massachusetts

January 22, 1884

Argued November 8, 1883[Syllabus Material]

Essex.Contract, to recover rent from May 24 to November 24, 1882 on the following instrument, in writing, dated November 24 1879, and executed by the plaintiff and the defendant:

"Know all men by these presents, that we, Samuel Kimball, of Boxford, in the county of Essex, and State of Massachusetts and William Sawyer, of Georgetown, in said State and county aforesaid, have leased our mill privilege in Boxford, it being the same on which our box factory was burned, with all the rights and privileges pertaining thereto, for the term of one year, for seventy-five dollars, with the privilege of continuing five years at one hundred dollars per year, to Henry M. Cross, of Newburyport, in the aforesaid State and county.

"And I, Henry M. Cross, on my part, promise to pay the rent as above described, and to be paid semiannually, and I agree to keep said privilege in as good condition as it is at this time."

Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows:

The plaintiffs put the lease declared on in evidence; and the defendant admitted its due execution and delivery.The land demised thereby extended seventy feet on a street, and ran back forty feet.A mill formerly standing thereon had been burned at the date of the lease.

At the same time that the lease was executed, Kimball demised to the defendant the right to take a deposit of infusorial earth from land near the premises demised in the lease, upon a royalty, and also about a quarter of an acre of land, on which to put sheds for drying said earth.The defendant furnished money to his brother, John S. Cross, who, as agent for the defendant, carried on operations in removing said deposits for a short time after November 24, 1879, not exceeding six months.Soon after November 24, 1879, a two-story building, twenty by thirty feet, was placed upon the premises demised by the lease, standing on stone posts, and used in connection with the removal of said deposits, which building was the property of the defendant.

The plaintiffs offered evidence tending to show that the defendant, at or near the end of the first six months of the first year of the lease, paid as rent therefor to one William F. Sawyer, as agent for William Sawyer, one of the plaintiffs, the sum of $ 18.75, that being his share of the semiannual rent then due; and also that the defendant, at or near the close of the first year, paid the same amount to William Sawyer for the last six months' rent of the first year; and that, at or about the end of the first six months of the second year after the date of said lease, the defendant paid Sawyer the sum of twenty-five dollars as his share of the rent of the premises demised in said lease for said six months.

It also appeared that, some time in the summer of 1881, the defendant was told by the plaintiff, that, if he wished to terminate his lease, he must move off his building; and that he then replied that he was not ready to do that, as he hoped to interest New York parties.It appeared at the trial that the building on the lot had never been removed.

On September 26, 1881, Kimball sent the following letter to the defendant, by the agent of both the plaintiffs: "Mr. Cross: If convenient, I would like to have our affairs settled up, I conclude you do not care to use the buildings longer.Please transact the business with Mr. William F. Sawyer, Georgetown.Yours truly, Samuel Kimball."

William F. Sawyer, agent of both the plaintiffs in collecting the rents and earnings for the premises, testified as follows, and his evidence was not contradicted: "I saw the defendant in September, 1881, at the time the letter was presented.I asked him to remove the buildings.I understood he wished to keep the infusorial earth lot longer, but did not wish to keep the mill privilege longer.In January, 1882, he told me he had no further use for these premises, and did not propose to pay any more rent or have anything more to do with them.I did not then ask him to remove the buildings, but had done so the previous fall."

It was admitted that no rent had been paid for the premises demised by the lease during the time covered by the writ, and that the same had been duly demanded.

The defendant contended, and offered evidence tending to show, that his third payment of rent was on account of Kimball's share of the first year's rent, and not for six months of the second year.He also denied that he had expressed any wish to retain the premises after the first year, and testified that at the end of the first year he had notified the plaintiffs that he should give up the premises; but this evidence was controverted by the plaintiffs.

The defendant offered to show that he had never seen the lease...