Tracy v. Long

• Decision Date: 09 September 1936
• Citation: 3 N.E.2d 789,295 Mass. 201
• Parties: TRACY v. LONG (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

295 Mass. 201

3 N.E.2d 789

TRACY v. LONG (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

September 9, 1936

Two actions of contract by Frank Joseph Tracy against Anna Lander (now Long). From an order of the Appellate Division dismissing a consolidated report after finding for plaintiff in both actions in the sums, respectively, of $55 and $199.52, defendant appeals.

Affirmed.

Appeal from Municipal Court of Boston, Appellate Division; Devlin, judge.

B Gargill, of Boston, for appellant.

C. M Goldman, of Boston, for appellee.

DONAHUE, Justice.

The plaintiff has brought two actions in which he seeks to recover from the lessee an amount alleged to be due under a written lease as the rent of an apartment for the months of June, July, August and September, 1934, and for expenses incurred in its reletting. The cases were tried together in the Municipal Court of the City of Boston where the judge found for the plaintiff and reported to the Appellate Division in a consolidated report his refusal to give certain requests for rulings filed by the defendant. The Appellate Division ordered the report dismissed.

There was evidence warranting the finding of the following facts. The term of the lease began September 1, 1933, and expired on August 31, 1935. It contained a covenant that the plaintiff would supply the apartment with hot water. The defendant, in February 1934, requested permission to surrender the premises but the plaintiff refused. On May 1, 1934, the defendant notified the plaintiff that she intended to vacate the apartment on June 1, but she did not do so. About June first or second all the other tenants of the building notified the plaintiff that they were unable to obtain hot water in their apartments. There were sounds of water being continuously run in the defendant's apartment. On June 3, the plaintiff was refused admission to the defendant's apartment. On the same day he sent her a telegram charging they by the running of hot water continuously in her apartment other tenants were unable to get any, and notifying her that unless she restricted her use of the hot water to ordinary needs the supply to her apartment would be shut off. On the next day, the conditions at the building continuing the same, the plaintiff disconnected the pipe supplying hot water to the apartment leaving no practical way of obtaining hot water in that apartment. When the pipe was disconnected the other tenants were able to get hot water in their apartments. On June 8, the defendant's attorney notified the plaintiff that she intended to move out and on the same day she did so. The judge found, and the evidence warranted the findings, that the defendant desired to break her lease and caused the hot water to run, exhausting the supply so that the plaintiff was obliged to disconnect the water supply in order to fulfill his obligations to his other tenants.

The defendant has argued before us only a request for rulings which read: ‘ Having terminated the lease and evicted the lessee, the plaintiff under the terms of the lease had no further claim against the lessee.’ This the judge denied stating that the request assumed facts which he did not find. We treat the other requests for rulings as waived. The defendant's brief states that ‘ The sole question presented * * * is whether the acts done by the plaintiff constituted an eviction as a matter of law.'

The burden of proving that the lease was terminated by a constructive eviction was on the defendant. Rome v. Johnson, 274 Mass. 444, 450, 174 N.E. 716, and cases cited. But the defendant contends that, since it was admitted by the plaintiff that the lease contained his covenant to supply the apartment with hot water and further admitted that he disconnected the pipe leaving no practical way of supplying the apartment with hot water, the judge was obliged to rule as matter of law that the plaintiff's act constituted, upon the defendant's abandonment of the premises, a constructive eviction.

There may be acts of a landlord interfering with his tenant's use and enjoyment of demised premises which in themselves are so unmistakable in significance, purpose and effect that they can be ruled as matter of law to constitute a constructive eviction upon the abandonment of the premises, by the tenant. On the facts disclosed by the present record the conduct of the plaintiff was not so unequivocal in character or effect that such a ruling should have been made.

It has frequently been said that in order to constitute a constructive eviction there must be some act of permanent character done by the landlord with the intent and effect of depriving the tenant of...