Staples v. Collins

• Decision Date: 11 June 1947
• Citation: 321 Mass. 449,73 N.E.2d 729
• Parties: STAPLES et al. v. COLLINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

321 Mass. 449

73 N.E.2d 729

STAPLES et al.

v.COLLINS.

Supreme Judicial Court of Massachusetts, Essex.

June 11, 1947.

Exceptions from Superior Court, Essex County; Goldberg, Judge.

Action of summary process for recovery of possession of land by Ralph W. Staples and another against Mary I. Collins. The judge found for plaintiffs for possession. On defendant's exceptions.

Exceptions overruled.

Before FIELD, C. J., and QUA, DOLAN, WILKINS, and SPALDING, JJ.

T. S. Herlihy, of Newburyport, for plaintiffs.

B. J. Lojko, of Newburyport, for defendant.

QUA, Justice.

At the trial of this action of summary process for the recovery of possession of land in Newburyport these facts were conceded or agreed: In 1943 one Kerkian demised the premises to the defendant by written lease by the terms of which the rent was payable on the first day of each month in advance. The term of the lease expired November 10, 1945. But before that and by October 13, 1945, the plaintiffs had become the owners of the reversion and by letter dated October 17 had notified the defendant of that fact. No notice to quit was given. The rent was paid by the defendant on the first of each month and was accepted by the plaintiffs. The writ in this action is dated December 13, 1945, and the action is brought ‘in compliance’ with a ‘certificate of eviction’ from the Office of Price Administration. The judge found for the plaintiffs for possession.

We cannot consider other alleged facts which the parties have attempted to add to the record by stipulation to which no assent of the trial judge appears. Carroll v. Daly, 162 Mass. 427, 428, 38 N.E. 1119;Tighe v. Maryland Casualty Co. 216 Mass. 459, 460, 461, 103 N.E. 941;Goodwin v. Walton, 298 Mass. 451, 452, 11 N.E.2d 460;Gorey v. Guarante, 303 Mass. 569, 570, 571, 22 N.E.2d 99;Commonwealth v. Anderson, 308 Mass. 370, 371, 32 N.E.2d 684;Becker v. Calnan, 313 Mass. 625, 628, 48 N.E.2d 668;Harrington v. Anderson, 316 Mass. 187, 190, 55 N.E.2d 30.

The bill of exceptions states that the plaintiffs ‘introduced in evidence a petition to the Area Rent Control Office which was marked Exhibit ‘3’ and referred to, and made a part hereof.' This exhibit is not printed in the record and it has not come to us in any form with the record. See G.L.(Ter.Ed.) c. 231, § 135, as amended; Ansara v. Regan, 276 Mass. 586, 591, 177 N.E. 671. The record before us is incomplete. The importance of this omission will presently appear.

We treat the defendant's motion that a ‘verdict’ be directed in her favor, although inappropriate in the absence of a jury, as a request for a ruling, which was denied by the judge, that the evidence did not warrant a finding against her. Menici v. Orton Crane & Shovel Co., 285 Mass. 499, 500, 501, 189 N.E. 839;Commonwealth v. Goldberg, 316 Mass. 563, 564, 55 N.E.2d 951.

When the term of the defendant's lease expired November 10, 1945, the defendant became a tenant at sufferance only, and as long as she remained such no notice to quit was required. Benton v. Williams, 202 Mass. 189, 192, 88 N.E. 843. But a tenancy at sufferance is readily changed into a tenancy at will by express or implied agreement of the parties. Whether there has been such agreement is, of course, commonly an issue of fact. In this case, after the termination of the lease, the defendant paid on December 1, 1945, the regular rent day, and the plaintiffs accepted, the rent in advance for the month of December. It is difficult to attribute a payment and acceptance of rent for a period in advance of occupancy to mere use and occupation for which a tenant at sufferance is made liable by G.L.(Ter.Ed.) c. 186, § 3, for such time only as he ‘may occupy or detain’ the land. Under our decisions it would seem that such payment and acceptance of rent, standing alone, are prima facie proof of the creation of a tenancy at will, Howard v. Merriam, 5 Cush. 563, 571;Benton v. Williams, 202 Mass. 189, 192, 193, 88 N.E. 843;Leavitt v. Maykel, 203 Mass. 506, 510, 89 N.E. 1056,133 Am.St.Rep. 323;Strycharski v. Spillane, 320 Mass. 382, 385, 69 N.E.2d 589;Jones v. Webb, 320 Mass. 702, 705, 706, 71 N.E.2d 216, and that the facts of payment and acceptance are controlling, if nothing further appears. See Tiffany, Landlord & Tenant, § 210, pages 1481, 1482. In Benton v. Williams, 202 Mass. 189, 88 N.E. 843, the rent was not paid in advance. See 202 Mass. at page 191, 88 N.E. 843. In Newman v. Sussman, 239 Mass. 283, 131 N.E. 926, the owner of the property did not cash a money order for the rent until after the expiration of the month for which it was paid. See 239 Mass. at page 286, 131 N.E. 926. In Moskow v. Robinson, 276 Mass. 16, 176 N.E. 603, there was evidence in addition to the payment and acceptance of...