Moskow v. Fine

• Decision Date: 31 October 1935
• Citation: 198 N.E. 150,292 Mass. 233
• Parties: MOSKOW v. FINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

292 Mass. 233

198 N.E. 150

MOSKOW v. FINE.

Supreme Judicial Court of Massachusetts, Suffolk.

October 31, 1935

Action of contract in the municipal court in the city of Boston by S. G. Moskow against Jacob Fine. From an order for judgment for defendant made by the Appellate Division upon a report by the judge who found for plaintiff in the sum of $85 plaintiff appeals.

Affirmed.

Appeal from Municipal Court of Boston Appellate Division; Murray, judge.

A Moskow, of Boston, for appellant.

A. I. Fine, of Boston, for appellee.

RUGG Chief Justice.

This is an action of contract. The declaration contained three counts, but the claim alleged in count two has been waived. The other counts are for the same cause of action, one being to recover under a lease of an apartment eighty-five dollars as rent for one month due on May 1, 1933, and the other to recover the same sum for use and occupation of the apartment for the same period. The case was tried upon an agreed statement of facts in substance as follows: The defendant signed the lease upon which count one is based and took possession of the apartment. He occupied it until June 14, 1933, when he moved out. The rent was payable in advance on the first day of each month. Notice to terminate the lease on May 31, 1933, was given by the defendant; the sufficiency of the notice is not assailed; he paid no rent to the plaintiff for May or June, 1933. On May 23, 1933, the mortgagee of the premises made entry for the purpose of foreclosing his mortgage, which antedated the lease, and made demand on the defendant for payment of rent for use and occupation from that time on. The defendant consented to pay the mortgagee rent from May 23, 1933. The defendant has not paid to the mortgagee rent for the amount involved in this action for May, 1933, or for any part of June, 1933. On June 1, 1933, the defendant told the attorney for the plaintiff that he would pay the plaintiff rent for May, 1933, if the mortgagee would write him a letter that he might do so, and on the same day a letter from the mortgagee directing the payment of back rent to the plaintiff's attorney was received by the defendant, but he has not paid such rent. On July 7, 1933, the mortgagee recorded in the registry of deeds a formal release of possession and delivered to the plaintiff an assignment under seal of all his claims for rent due from the defendant by reason of his occupancy of the apartment. When this case was first tried, another action between the same parties was tried with it. The declaration in that action contained two counts, one to recover rent for the apartment for the period between June 1 and June 15, 1933, due the plaintiff by virtue of the assignment from the mortgagee, and the other to recover for the use and occupation of the same apartment from May 23, 1933, to June 15, 1933, both counts being for the same cause of action. In that action the defendant admitted liability for the latter period and there was a finding for the plaintiff for sixty-two dollars and twenty cents, the amount due for the entire period at the rate of eighty-five dollars a month, that being the rent reserved in the lease. Requests for rulings at the trial now under review were all denied except one applicable to count three to the effect that liability ‘ for use and occupation does not exist where the relationship between a landlord and tenant is that of lessor and lessee.’ The finding in the present case was for the plaintiff for eighty-five dollars. The Appellate Division reversed that finding. The plaintiff appealed.

The appeal brings before this court rulings of law made by the trial judge and reported by him and the action of the Appellate Division thereon. G. L. (Ter. Ed.) c. 231, §§ 108, 109; Woodman v. Haynes (Mass.) 193 N.E. 570.

It was said in Highland Trust Co. v. Slotnick (Mass.) 193 N.E. 831, 832:‘ The entry by the mortgagee under a title paramount to that of the landlord with the demand that the tenant thereafter pay rent to the mortgagee was, in its effect upon the tenant's liability under the lease to pay rent to the landlord, equivalent to an eviction and terminated the tenancy created by the lease. International Paper Co. v. Priscilla Co., 281 Mass. 22, 29, 34, 183 N.E. 58, and cases cited; Smith v. Shepard, 15 Pick. 147,25 Am.Dec. 432. The rent payable monthly in advance under the lease was indivisible and not subject to apportionment and the termination of the lease put an end to the right which the landlord, prior to the entry, had under the terms of the lease to require the payment of rent for the month of April.Smith v. Shepard, supra; Fillebrown v. Hoar, 124 Mass. 580, 583; Sutton v. Goodman, 194 Mass. 389, 395, 80 N.E. 608; Hall v. Middleby, 197 Mass. 485, 489, 83 N.E. 1114. See, also, Hammond v. Thompson, 168 Mass. 531, 47 N.E. 137; Caruso v. Shelit, 282 Mass. 196, 199, 184 N.E. 460; Welch v. Gordon, 284 Mass. 485, 188 N.E. 239. * * * The landlord could not recover against the tenant for his use and occupation of the premises for those few days since that was manifestly use and occupation under the contract expressed in the written lease. There can be no implied obligation to pay rent for a period during which there was an existing express contract of the parties providing for the payment of rent. Barry v. Ryan, 4 Gray, 523, 526; Nicholson v. Munigle, 6 Allen, 215; Brooks v. Allen, 146 Mass. 201, 15 N.E. 584; Gorin v. Stroum, supra [288 Mass. 6, 192 N.E. 90].’ It is plain under this decision and the authorities there collected that the plaintiff has lost the right to recover the rent for the month of May on either count in his declaration. The relation of landlord and tenant between the plaintiff and the defendant came to an end on May 23, 1933, when the mortgagee entered to foreclose the mortgage and demanded rent of the defendant and the defendant acknowledged that superior title. The plaintiff thereby had broken his covenant with the defendant for quiet enjoyment. There are elements in the case at bar lacking in Connolly v. Kilcourse, 285 Mass. 398, 189 N.E. 199.

The plaintiff relies upon a clause in the lease of this tenor ‘ Provided Always, and these presents are upon this Condition that in case of a breach of any of the covenants to be observed on the part of the lease, [lessee] or in case the estate hereby created shall be taken from the lessee, or from his representatives by process of law, by proceedings in bankruptcy or insolvency or otherwise, the lessor, her agents or her heirs, or assigns may, while the default or neglect continues, or at any time after such taking by process of law, and notwithstanding any license or waiver of any prior breach of condition, without any notice or demand enter upon the leased premises and expel and remove, forcibly if necessary, the lessee, and those claiming under him and their effects without being taken or deemed guilty of any manner of trespass and thereby determine the estate hereby created but without prejudice to any rights or remedies hereunder; it being agreed that the monthly payments as above covenanted, either as rent or otherwise, shall in no event be impaired or discharged and such payments as aforesaid shall become due and payable every month during the full lease month during the full lease term as above stipulated,...