Torrey v. Adams

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: SANDERSON
• Citation: Torrey v. Adams, 254 Mass. 22, 149 N.E. 618 (Mass. 1925)
• Decision Date: 28 November 1925
• Parties: TORREY v. ADAMS.

254 Mass. 22

149 N.E. 618

TORREY

v.ADAMS.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 28, 1925.

Exceptions from Superior Court, Suffolk County; George A. Flynn, Judge.

Action of contract by Walter R. Torrey against Alice Faulkner Adams, executrix of the will of Charles W. Newhall, deceased, to recover rent accruing under lease. Verdict for plaintiff, and defendant excepts. Exceptions sustained.

Jones & Lawton, of Newburyport, for plaintiff.

S. H. Hollis and R. T. Parke, both of Lynn, for defendant.

SANDERSON, J.

This is an action of contract to recover rent from June 1, 1921, to May 1, 1922, accruing under a lease of suite 2, No. 1283 Commonwealth avenue, dated November 23, 1910, and an alleged extension thereof dated May 21, 1920.

The lessee named in the lease was the defendant's testator, Charles W. Newhall. The term of the lease was for five months, beginning December 1, 1910, and continuing thereafter from year to year until one of the parties should on or before the 1st day of April in any year give to the other party written notice of his intention to terminate it on the 1st day of the following May, in which case the term would end in accordance with such notice. The rent reserved was $50 per month in advance.

On April 12, 1920, the plaintiff notified the lessee, in substance, that he was compelled to raise the rent about $20 a month. On May 21, 1920, the lessee paid the plaintiff $28.33 and the parties signed an agreement in the following words:

‘Received of Mr. C. W. Newhall check of $28.33, balance of May rent, and lease of suite 2, 1283 Commonwealth Ave. is extended on same terms as therein expressed, excepting an agreed rental of seventy-eight and 33/100 dollars per month.

Walter R. Torrey.

‘Approved and agreed to.

C. W. Newhall.'

Rent at the rate of $78.33 per month was paid by the lessee from May 1, 1920, to June 1, 1921.

On April 1, 1921, the plaintiff received from the lessee a letter dated March 25, 1921, containing the following statement:

‘I suppose you have heard by this time that my dear wife has passed away the 15th of this month and I want to tell you that I will have to give up the apartment when the lease expires, June 1, 1921, as I shall break up housekeeping. I expect to return East early in May to see about things and trust this will be satisfactory to you.’

The lessee moved his furniture from the building in May, 1921, and was not personally in it thereafter. He died June 28, 1921. There was evidence tending to prove that the plaintiff told the lessee in May or early June, 1921, that he would not accept the letter of March 25 as sufficient to terminate the lease; that the lessee had made a mistake about the time when the lease expired, and that the lessee then said that he did not have the lease with him and had made a mistake about the date; that the plaintiff then agreed that he would with the lessee's consent put the premises in good condition and let them if he could and give the lessee the benefit thereof; that the plaintiff thereafter repaired the apartment and tried to set it and that some of the keys were resained by the lessee until the date of his death. The judge ruled that the letter datted March 25, 1921, did not terminate the lease, that the agreement signed by the parties on May 21 was a valid modification of the contract, and that the parties continued to be bound by the provisions of the lease as modified. Under the instructions, the jury must have found that there was no waiver of any infirmity in the notice and no surrender of the lease.

The questions presented for decision are (1) whether as matter of law the letter terminated the tenancy; and (2) whether there was legal consideration for the agreement to pay additional rent.

[1][2] 1. The letter of March 25, 1921, was not legally sufficient to terminate the lease. The notice required by the lease was not given. Baker v. Adams, 5 Cush. 99;Carlisle v. Weiscopf, 237 Mass. 183, 129 N. E. 375. Technical accuracy in the wording of such a notice is not required, but it must be so certain that it cannot reasonably be misunderstood, and if a particular day is named therein for the termination of the tenancy, that day must be the one corresponding to the conclusion of the tenancy, or the notice will be treated as a nullity. The notice would have been sufficient if in any form of words it had provided for the termination of the lease on May 1, 1921.2 Taylor, Landlord and Tenant, § 476; Sanford v. Harvey, 11 Cush. 93.

[3] Even in a case where the proper notice is given by a tenant, under a lease which provides that continued occupancy beyond the year would be a renewal, and the tenant with the assent of the lessor continues to occupy beyond the date set in the notice for the termination of the lease, the lease is thereby renewed or extended upon the same terms and conditions. Hildreth v. Adams, 229 Mass. 581, 118 N. E. 876. Although the notice stated that the lessee would have to give up the tenancy when the lease expired, the date fixed for terminating it and breaking up housekeeping was June 1. The lessee did not intend to return from California until early in May, and during a part of the month of May he was moving furniture from the apartment. The lease provided for the continuation of the tenancy from year to year, unless the notice was given as therein provided. The ruling that this notice did not terminate the tenancy was right.

2. The cases in this commonwealth where an agreement to modify a contract has been held to be supported by the original consideration have rested either on the ground that the first contract has been waived or rescinded and a new contract with modifying terms substituted for it, or on the ground that, one of the parties having refused to perform his part of an executory contract, the other party, instead of resorting to an...