Taylor v. Kennedy

Decision Date27 November 1917
Citation117 N.E. 901,228 Mass. 390
PartiesTAYLOR et al. v. KENNEDY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Worcester County; George A. Sanderson, Judge.

Action for rent under written lease by Forrest W. Taylor and others against Frederick J. Kennedy. There was a finding for plaintiffs, and defendant excepts. Exceptions sustained.

Defendant's requests for rulings were:

(1) That on or about March 1, 1915, the lease upon which the plaintiff's action is founded was surrendered by operation of law.

(2) That between February 22, 1915, and October 1, 1915, the plaintiffs evicted the defendant, to which eviction the defendant assented, and the plaintiffs cannot recover.

(3) That the defendant is entitled to damages by way of set-off to an amount equal to the sum which the plaintiffs claim is due for rent.

(4) That the plaintiffs are estopped from collecting any rent of the defendant.

Taft & Stobbs and H. H. Hartwell, all of Worcester, for plaintiffs.

E. H. Vaughan, Edward T. Esty, and Jay Clark, Jr., all of Worcester, for defendant.

BRALEY, J.

The defendant as lessee covenanted to pay the rent reserved during the term, and this obligation generally would continue after as well as before he assigned to the Kenny-kennedy Company, as he remained liable by privity of contract even if the assignee also became liable through provity of estate. Way v. Reed, 6 Allen, 368, 369;Carpenter v. Pocasset Mfg. Co., 180 Mass. 130, 133, 134, 61 N. E. 816.

It is contended, however, by him, that his liability has been terminated by either a surrender of the lease, or eviction by the lessor to which he assented. ‘The rule of law, as now settled by the recently adjudicated cases, is, that any acts which are equivalent to an agreement on the part of the tenant to abandon and on the part of the landlord to resume possession of demised premises amount to a surrender of a term by operation of law.’ Talbot v. Whipple, 14 Allen, 177, 180. And the defendant has the burden of proof. Leavitt v. Maykel, 210 Mass. 55, 96 N. E. 51. It appears in the findings of fact by the presiding judge, that while the defendant and his assignee ceased to occupy the store in the month of August, 1913, ‘and from that time to the end of the term were willing to be released from further obligation,’ yet they ‘sublet the store from time to time and paid rent to the plaintiff until and including the month of February, 1915.’ During this month the agreement in writing on which the defendant relies as releasing him was executed by one Butler, the duly authorized representative of the estate of the lessor, and the City Trust Company, acting by one Minton, whereby the company was to lease the store for a term of seven years from the 1st day of March, 1915, leaving the original leasehold a year to run before expiration by limitation. Butler and Minton, as the judge finds, orally agreed and understood, that as the company had not been organized the lease referred to in the agreement was not to be executed unless a charter should be obtained. It is further found that Butler stated to Minton that the agreement was subject to the existing lease ‘which would have to be cancelled if a new lease was written, and if the old lease was not given up . . . the agreement could be null and void,’ and that the lease referred to in the agreement was not to be executed unless the charter should be obtained.

[5] The defendant even if he knew of the written agreement is not a party to it, and the plaintiff was properly allowed to show that the instrument was not to become operative unless the corporation was formed, as well as to explain the subsequent receipt by the lessor of rent from Minton during the period of the attempted organization of the company, but which never was chartered, and the acts of one Kenny, who having authority ‘to act for the defendant in all matters connected with the lease,’ aided in procuring, and in the collection of rent from a subtenant. Maionica v. Piscopo, 217 Mass. 324, 328, 104 N. E. 839;Bowes v. Christian, 222 Mass. 359, 362, 110 N. E. 1034. The evidence as to all the transactions was admissible also on the issue, as to whether the defendant had been evicted. It is settled that where as in the case at bar the lessee relies on the defense that other tenants have been accepted from whom rent has been collected, the lessor may show that his acts when explained raise no presumption of an intention to evict, and that in fact the tenant never has been ousted. Taylor v. Finnigan, 189 Mass. 568, 573, 76 N. E. 203, 2. L. R. A. (N. S.) 973, and cases cited; Cooley v. Collins, 186 Mass. 507, 510, 71 N. E. 979;Skally v. Shute, 132 Mass. 367.

The evidence of sending the key of the store to the plaintiffs on January 1, 1916, after the subtenant ceased to occupy, and its return by the plaintiffs to Kenny by whom the key subsequently was tendered to the plaintiff Taylor who refused to receive it, while clearly admissible was not conclusive proof of acts absolving the defendant, but incidents only to be considered in connection with the conduct of the parties. But the statement made by Kenny to the sublessee, in the absence of the plaintiffs or their agent, that he had not anything to do with the store,’ was a self-serving declaration which was excluded properly. And the judge's findings, ‘that the plaintiffs did not intend to evict the defendant, and that they have not either by acts or words evicted him,’ and ‘that the plaintiffs have not accepted a surrender of the lease to the defendant,’ having been warranted on the evidence, the defendant's first, second and fourth requests were denied rightly. American Malting Co. v. Souther Brewing Co., 194 Mass. 89, 80 N. E. 526.

Nor could the third request have been given. A short answer is that the defendant...

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