Lowell Housing Authority v. Save-Mor Furniture Stores, Inc.

• Decision Date: 05 November 1963
• Docket Number: SAVE-MOR
• Citation: 346 Mass. 426,193 N.E.2d 585
• Parties: LOWELL HOUSING AUTHORITY v.FURNITURE STORES, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 585

193 N.E.2d 585

346 Mass. 426

LOWELL HOUSING AUTHORITY v. SAVE-MOR FURNITURE STORES, INC.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 9, 1963.

Decided Nov. 5, 1963.

Robert P. Sullivan, Chelmsford, for plaintiff.

Stanley M. Epstein, Boston, for defendant.

Before SPALDING, WHITTEMORE, KIRK, SPIEGEL and REARDON, JJ.

KIRK, Justice.

The plaintiff (the Authority) was awarded damages in this action of contract for the use and occupation by the defendant (Save-Mor) of part of the premises which were taken by eminent domain by the Authority from Subob Realty, Inc. (Subob), the lessor of Save-Mor. The case was heard by a judge without jury upon the report of an auditor whose findings were not final. A consolidated bill of exceptions wherein the Authority excepted to the denial of a request for a ruling as to damages, and Save-Mor to the denial of certain requests as to liability, brings this case to us.

We summarize the findings of the auditor. One Glickman at all material times was the president, treasurer, manager and common owner of both Subob, the owner and lessor, and Save-Mor, the lessee. Under its lease with Subob, executed in January, 1956, Save-Mor occupied large areas of the first and second floors of a building at 338-340 Central Street, Lowell, at a rental of $675 a month, the fair value of the demised premises. Save-Mor used the premises for the retail sale and the storage of furniture. On June 6, 1958, the Authority took the land and building. In due course, Subob obtained a judgment for the taking which the Authority has satisfied. After the taking, and until November 25, 1958, Save-Mor continued to use and occupy the area on the first floor, but did not itself use and occupy the area on the second floor. Save-Mor did, however, permit one Smith, who was a tenant of other areas on the first and second floors, to use for storage purposes that part of the second floor which had been leased to Save-Mor. Access to the latter area was by a ramp which was part of the premises demised to Save-Mor, but which Smith had a right to use to reach his own partitioned area on the second floor. The nature of the building was such that whoever had the use and occupancy of the first floor had control over the use and occupancy of the second floor by way of the ramp leading to it. After the taking, there was discussion, but no agreement, between the Authority and Save-Mor as to the terms and conditions under which Save-Mor could continue to occupy the premises.

The auditor made alternate ultimate findings: A. Unless controlled by the subsidiary facts, Save-Mor was liable to the Authority as a tenant at sufferance of the first and second floors from June 6, 1958, to November 25, 1958, at the rate of $675 a month. B. If Save-Mor was liable for the use of the first floor only, the fair rental value was $450 a month. C. If the uncertainty of occupation resulting from the taking be a relevant factor in determining the fair rental value, (1) the charge for both floors should be at the rate of $450 a month, and (2) the charge for the first floor only should be at the rate of $300 a month.

Based upon the auditor's report, accompanied by certain exhibits, mainly photographic, which are also before us, the judge found for the Authority and assessed damages in the sum of $2,534.66. The award and the disposition of the requests for rulings show, as the parties concede, that the judge found that Save-Mor was liable for the use and occupation of both floors but at the lower rental of $450 a month because of the uncertainty of occupancy due to the taking.

The exceptions of Save-Mor raise two questions for our determination. The first is whether Save-Mor, upon the taking, became a tenant at sufferance so as to be liable to the Authority for rent under G.L. (Ter.Ed.) c. 186, § 3, which reads: 'Tenants at sufferance in possession of land or tenements shall be liable to pay rent therefor for such time as they may occupy or detain the same.' It is clear that the valid ¹ taking by the Authority of the whole of Subob's estate in fee divested Subob of its title and automatically terminated Save-Mor's lease. Newman v. Commonwealth, 336 Mass. 444, 446, 146 N.E.2d 485, and cases cited. Concurrently, Save-Mor's obligation to pay rent to Subob, under the lease or otherwise, came to an end. O'Brien v. Ball, 119 Mass. 28, 30. Sparrow Chisholm Co. v. Boston, 327 Mass. 64, 67, 97 N.E.2d 172. Further, we think that on well established principles, although we are not aware of any case precisely in point, Save-Mor, simultaneously with the taking became a tenant at sufferance of the Authority. This court in Bunton v. Richardson, 10 Allen, 260, held that a conveyance of the fee by the owner terminated a tenancy at will whereby the latter, upon the tenant's remaining on occupation, became a tenancy at sufferance in relation to the new owner. It was held further in the same case that the requisite privity of estate between the tenant and the new owner was created by the express terms of the statute (Gen.Sts. c. 90, § 25), which is the predecessor to G.L. (Ter.Ed) c. 186, § 3. In Merrill v. Bullock, 105 Mass. 486,...