Rollins v. Moody

• Decision Date: 08 March 1881
• Parties: WILLIAM ROLLINS v. RICHARD C. MOODY and another.
• Court: Maine Supreme Court

72 Me. 135

WILLIAM ROLLINS v. RICHARD C. MOODY and another.

Supreme Judicial Court of Maine.

March 8, 1881

EXCEPTIONS from superior court, Kennebec.

The facts sufficiently appear in the opinion.

H S. Webster, for the plaintiff.

Henry Farrington, for the defendants.

R. S c. 94, § 2, provides that " all tenancies at will may be determined by either party by thirty days' notice in writing for that purpose given to the other party, and not otherwise except by mutual consent." Under this statute for how long a time, is a tenant at will, liable to pay rent for premises he has vacated and given up to his landlord, simply because his notice to the landlord was verbal and not in writing?

The defendants contend, if no time was fixed by the parties, at which rent should be payable, that they are liable to pay rent only for thirty days after the plaintiff had notice that they had vacated his store.

That if it is inferable from the facts stated in the exceptions, that they were to pay the rent semi-annually, then that they are liable to pay rent for the succeeding term of six months after they vacated at the end of the third term or eighteen months and no more.

But for the words " and not otherwise except by mutual consent" in the present statute, it would be easy to determine this case by Withers v Larrabee, 48 Me. 570, in which it was held in a similar case under R. S., 1841, c. 95, § 19, and the rent was payable quarterly, that the tenant who quit without giving the statute notice in writing, was liable to pay rent for the succeeding quarter and no more.

That statute was precisely like our present statute, excepting the length of notice required and the words " and not otherwise except by mutual consent."

In Whitney v. Gordon, 1 Cush. 266,--under a statute precisely like the provision in the statutes of 1841--a case in which rent was payable quarterly and the tenant left at the end of a quarter, without giving the statute notice, it was held that the tenant was liable, prima facie, for the second quarter.

The same doctrine was held in Walker v. Furbush, 11 Cush. 366; 2 Allen 105, and 108 Mass. 553, and in no case in Maine or Massachusetts has a different rule been adopted under the statutes referred to.

In Wilson v. Prescott et al. 62 Me. 115, it was held that " the expiration of the thirty days' notice must be coincident in point of time with a pay day of rent." Cameron v. Little, 62 Me. 550; Robinson v. Deering, 56 Me. 357; Goodenow v. Allen, 68 Me. 308.

In Esty v. Baker, 50 Me. 333, and Young v. Young, 36 Me. 133, it was held that tenancies at will by the common law, could be determined at the will of either party without notice, while a tenancy at will by statute, could only be determined by notice. It seems, therefore, a reasonable inference that the legislature intended by the words " and not otherwise except by mutual consent" to include all tenancies at will whether by the common law or by statute and to supersede all the common law methods of terminating tenancies at will. Cunningham v. Horton, 57 Me. 420. That this was the intention of the legislature rather than to make a different rule as to the liability of tenants, than that adopted in Withers v. Larrabee, supra.

While it is easy to see that such may be the effect of these words, it is difficult to see how and why the tenant's liability for rent should be any different under the present statute than under the provisions of R. S., 1841, to which reference has been made.

PETERS J.

The parties agreed upon a verbal lease of a store for five years. This created only a tenancy at will. Under our statute, such a tenancy can be determined by either party " by thirty days' notice in writing for that purpose given to the other party, and not otherwise except by mutual consent."

After occupying a year and a half, without giving any written notice at all, the defendants abandoned the store, leaving it unoccupied for two years. The plaintiff knew of the abandonment and refused to accept possession. The rent was payable half yearly. The action is to recover, among other claims, for the use and occupation of the store for those two years.

The defendants contend that their liability for rent is limited to the period at the expiration of which they could have surrendered the store had written notice been given; that thirty days' notice could have been served during the first six months terminating the tenancy at the end of the six months; and that therefore six months' rent only can be recovered. The argument is, that the notice required is of an intention to terminate the tenancy, and not a notice of the fact that the tenancy has been terminated; that the object of notice would be to inform the landlord when the premises would revert to him, so that he may have a reasonable opportunity to relet them; and that no such notice could be necessary where the landlord has had actual knowledge that his store had been abandoned to him.

If this action were one for damages for an abandonment of the premises without notice, the argument would be good. A tenant at will, evicted by his landlord without notice, may recover damages for being deprived of the use of the premises for such term as he was entitled to occupy before his tenancy could be legally terminated. The same rule applies conversely, when the landlord sues for damages instead of rent. Ashley v. Warner, 11 Gray 43; Sedg. on Dam (7th ed.) 1 vol. 391. But either side can avoid being subjected to such a rule of damages. The tenant can resist an eviction without notice and...