Rosenberg v. Peter

• Decision Date: 04 October 1929
• Citation: 269 Mass. 32,168 N.E. 166
• Parties: ROSENBERG v. PETER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 32

168 N.E. 166

ROSENBERG

v.PETER et al.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 4, 1929.

Exceptions from Superior Court, Worcester County; W. H. Whiting, Judge.

Action by Harry Rosenberg against Kosta Peter and another, doing business as Peter Bros. Defendants' motion that plaintiff could not recover on first and second counts in declaration was allowed, and finding for plaintiff on third count, and plaintiff brings exceptions. Exceptions overruled.

C. E. Tupper, of Worcester, for plaintiff.

J. C. Donnelly, of Worcester, for defendants.

PIERCE, J.

This is an action of contract brought upon three counts in the plaintiff's declaration. The first two counts are for use and occupation of a parcel of land with the buildings thereon situated on the northeastern side of Herman Street in Worcester from September 8, 1922, to August 11, 1924, together with interest thereon. The third count is upon a written lease dated July 23, 1919, by which the defendants agreed to pay the plaintiff the sum of $67.50 per month for the premises described. This count alleges that the defendants owe the plaintiff the sum of $1,552.50 as rent from August 23, 1922, until July 23, 1924, if said lease was in force and effect during that period. The answer of the defendants is a general denial, and the further answer that all the facts involved in the present action have been previously adjudicated in an action between the same parties involving rent for a period previous to the rent claimed in the plaintiff's declaration in this action; and that all issues involved in the present action have been actually tried and determined in the said previous action, and that the plaintiff is therefore estopped from prosecuting this action.

The case was tried to a judge of the Superior Court without a jury. At the close of the evidence the defendants asked the judge to allow a motion that the plaintiff could not recover on the first and second counts on the ground that the claim made thereunder was res judicata but they admitted the plaintiff was entitled to recover on the third count. The defendants' motion in writing was allowed and the plaintiff's exceptions were saved upon this ruling. The judge then found for the plaintiff on the third count. The case comes before us on the plaintiff's exceptions to this ruling and to the admission of certain evidence at the trial.

All the material evidence including, by consent of the plaintiff and defendants, the docket entries in cases numbered[269 Mass. 34]24571 and 25469, entitled Harry Rosenberg v. Vasil Peter et al. and Tr. respectively, is contained in the bill of exceptions. From this evidence it appears that the lease referred to in count three of the plaintiff's declarations was executed on July 23, 1919, and ran for a term of five years, at the rate of $67.50 a month. On August 23, 1920, a large fire destroyed, as the plaintiff contends, one of the buildings on the premises. The plaintiff's contention is that subsequent to the fire he notified the defendants that the fire broke the lease; that he was going to charge more rent; that as a result of the conversation then had the defendants agreed that they would pay $125 per month, and the plaintiff told them that they could use a passageway which had been expressly excluded by the lease and could use a triangular piece of land which was not included in the lease.

On August 15, 1921, the plaintiff brought an action against the defendants with a declaration in two counts, one for the use and occupation of the premises occupied by the defendants on the northeasterly side of Herman Street at the rate of $125 per month for a period between August 23, 1920, and August 15, 1921. A second count was upon an account annexed, for the same time at the same rate per month. Except that they cover different months, the action in that suit and counts one and two in all subsequent suits are alike, in that the actions are based on the alleged oral contract made after the fire. At the conclusion of the action upon the writ dated August 15, 1921, the trial judge ordered a verdict for the defendants; the case was afterwards settled by agreement of parties.

On September 8, 1922, the plaintiff brought an action (No. 24571) against the defendants on the oral agreement to recover for the use and occupation of the same premises on Herman Street; and on a second count annexed to recover the same sum for the same time as in the first count for use and occupation. In action No. 24571 the plaintiff was allowed to amend his declaration by adding a third count upon the covenants to pay rent contained in the lease dated July 23, 1919 (supra). In this action there was a verdict by the jury for the plaintiff. The docket entries disclose that this case did not go to judgment and at the trial of the present action remained on the ‘inactive list.’ The record of this case was admitted erroneously.

Subsequently, the plaintiff brought another action against the defendants. The declaration in this action, No. 25469, alleges rent for the use and occupation of the same premises as in the prior suits, from September 8, 1922, to January 25, 1923, and an account annexed covering the same period at the same rate, i. e. ‘Peter Bros. to Harry Rosenberg, January 25, 1923, to use and occupation of land on Herman St. from Sept. 8, 1922, to Jan. 25, 1923, at the rate of $125 per month, $570.72.’ In this action the plaintiff was allowed to amend his declaration by adding a third count, which reads: ‘And the plaintiff says that he made a leasehold agreement with the defendants dated July 23, 1919, by which the defendants agreed to pay him the sum of $67.50 per month, and that the...