Tashjian v. Karp

• Decision Date: 02 October 1931
• Citation: Tashjian v. Karp , 277 Mass. 42, 177 N.E. 816 (Mass. 1931)
• Parties: TASHJIAN v. KARP et al.
• Court: Supreme Judicial Court of Massachusetts

277 Mass. 42

177 N.E. 816

TASHJIAN

v.KARP et al.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 2, 1931.

Report from Appellate Division of District Courts, Western Division; L. O. Rieutord, Judge.

Action by Nazley M. Tashjian against Joseph Karp and others. Finding for defendants. On report.

Order of Appellate Division ordering report dismissed affirmed.

F. W. Morrison, of Worcester, for plaintiff.

Harry Zarrow and M. N. Abodeely, both of Worcester, for defendant.

CROSBY, J.

This is an action of contract to recover $450, a balance of rent alleged to be due under a written lease, and two other items respecting which no question of law is presented.

The lease was dated March 17, 1926; the leased premises consisted of a store to be used in the business of retreading and repairing automobile tires and tubes, and selling new and secondhand automobile tires and tubes. The term of the lease was for three years from April 1, 1926, the stipulated rental being $1,200 for the first year, payable in advance in monthly installments of $100, and $2,760 for the remainder of the term, payable in advance in monthly installments of $115.

There was evidence that the plaintiff could read in the English language typewritten and printed papers, and letters written in English write in English if the words were spelled to write in English if the words weres spelled to her in English. There was further evidence tending to show that when the lease was given and thereafter she was ill a greater part of the time, and unable to attend to her business; that her husband collected the rent and looked after repairs, and if repairs were needed or electric changes were made he acted for her.

The defendants testified that they occupied the premises during the full term of the lease, and it was agreed that for the first eighteen months thereof the rent was paid in full. There was evidence tending to show that the defendants complained to the plaintiff's husband of water coming through the ceiling of the store upon the merchandise of the defendants, and that a customer had been struck by a portion of the ceiling falling upon him, which had become weakened by reason of the leaky condition of the roof, and that water came into the store through the ceiling upon another customer. There was further evidence that at the expiration of the first eighteen months of the lease the defendants stated to the plaintiff's husband that their business was poor, owing to the leaky condition of the roof, and that they were not willing to continue to pay the full rental; that they would pay $230 to break the lease; that the plaintiff's husband, after consulting his wife, told the defendants that his wife would not accept the offer, but was willing ‘to cut twenty-five (25) dollars off the rent per month for the remainder of the lease.’ The defendants testified that they accepted this offer, and that they further agreed that because of the reduction in the rent they would make no further complaint about the roof, and if they wanted it repaired they would make such repairs at their own expense. It was admitted that they did not make any repairs. There was evidence that no further complaint was made respecting the condition of the roof by the defendants; that they covered their merchandise to protect it from water, and placed pails under the leaks; that for six months following the foregoing conversation they gave the plaintiff's husband a series of checks for the monthly rental of $90 each, upon each of which was written ‘for rent in full for the store located at 677 Main Street’; that these checks were accepted and cashed by the plaintiff's husband without protest;that after the expiration of this six months' period the defendants continued each month to give a check for $90 with a similar notation upon it until the end of the term of the lease; that these checks were cashed by the plaintiff's husband, but upon each before indorsing he wrote the following: ‘Received this check on account of rent for 677 Main Street store. This does not waive right to collect balance due.’ The plaintiff and...