Twombly v. Monroe

• Decision Date: 29 February 1884
• Citation: 136 Mass. 464
• Parties: Mary J. Twombly v. Samuel L. Monroe
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 464

Mary J. Twombly v. Samuel L. Monroe

Supreme Court of Massachusetts

February 29, 1884

Argued November 8, 1883 [Syllabus Material]

Essex. Tort in four counts. The first count alleged that the defendant forcibly broke and entered the plaintiff's dwelling-house on Locust Street in Haverhill, and did certain acts therein. The second count was for an assault. The third count was for the conversion of certain goods of the plaintiff. The fourth count alleged that the defendant caused to be published in a newspaper in Haverhill a false and malicious libel concerning the plaintiff, a copy of which was as follows: "The Locust Street Brutality explained. The woman came to my house, Sept. 16, 1882, engaged a suite of rooms for $ 1.50 a week. She left April 11,1883. She paid $ 34.50. About three months ago she decided not to come down stairs at all; consequently she was a great deal of trouble. I told her six weeks ago, that if she would leave the 1st of April, and give me $ 6, I would give her a receipt in full. She wouldn't do it. She kept her door locked, and would not give any satisfaction. I sought advice, and did as I was told. She is not a stranger here, -- she never made friends. Can find out all about her by taking a little trouble. The Landlord."

Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows:

The plaintiff introduced evidence tending to prove that on September 16, 1882, she began to occupy certain rooms in a house owned and occupied by the defendant, under an oral contract with him to pay him rent at the rate of one dollar and a half per week, payable monthly; that she had paid all the rent due to the defendant except the sum of about ten dollars, which was in arrear, and continued to occupy said rooms until April 11, 1883; that on that day, while the plaintiff was temporarily absent from said rooms with the intention of returning, the defendant effected an entrance therein, without any breach of the peace; that, upon hearing of the entry of the defendant, the plaintiff returned to her rooms, the defendant trying without success to prevent her entry; that the defendant told the plaintiff that he had got possession, and she must not come in; and that he then removed the plaintiff's effects, took out the door and windows, put out the fire, and tried forcibly to remove the plaintiff, taking her by the shoulder.

The defendant testified that, on April 6, 1883, he executed and delivered a written lease, under seal, of said premises to Oliver T. Peters, for the term of six months from said April 6; that Peters signed it, and also signed the following paper, addressed to the plaintiff: "You will please take notice that I have a written lease of the premises now occupied by you at No. 69 Locust Street in this city, from the owner thereof, and you are hereby required to vacate the same forthwith. Haverhill, April. 6, 1883;" and that Peters handed both the lease and said paper to the defendant saying, "Go ahead and get possession;" and, in pursuance of this authority, the defendant did what he afterwards did as agent of Peters, and sent this notice to the plaintiff by his daughter on April 7.

The defendant further testified that Peters never occupied the rooms; and that nothing had been said or done between him and Peters between April 6 and the time of the acts complained of.

There was no other evidence as to the execution and delivery of said lease or paper, or of the authority of the defendant to act for Peters. Peters was not called or summoned as a witness at the trial.

The plaintiff admitted that, on April 7, 1883, she received the aforesaid notice from the hands of the defendant's daughter.

The plaintiff testified that, at the time of the alleged trespass, the name of Peters was not mentioned, nor was there any statement made to her that the defendant was acting for Peters. The defendant did not contradict this testimony, and introduced no testimony that he had at any time told the plaintiff that he was the agent of, or authorized to act for Peters, except as appears herein; but it appeared that the defendant had taken possession of the premises, and was in possession when the plaintiff returned thereto, and it did not appear that she made any inquiry as to the authority under which he acted or was there.

The plaintiff contended that she was entitled to go to the jury upon this evidence, which was all the evidence upon the first three counts. But the judge ruled that there was no evidence to warrant the jury in finding that there was no delivery of said lease, or that the defendant was not agent of the lessee in taking possession of the premises and doing the acts done therein; and also ruled that, upon the evidence, the plaintiff was not entitled to recover on the first and third counts; and directed the jury to find for the defendant on those counts.

The judge instructed the jury, as to the second count, that the defendant had the right to use necessary and suitable force to remove the plaintiff from said rooms, and no more, she refusing to go when requested; and that if he used no more force than was necessary and suitable under all the circumstances, they should return a verdict for the defendant on the second count; and that if he used unsuitable and unnecessary force in removing her, they should return a verdict for the plaintiff.

The plaintiff then introduced evidence tending to prove that the defendant caused to be published in the Haverhill Daily Bulletin, a newspaper published in Haverhill, the article alleged to be a libel in the fourth count; and that it was published of and concerning the plaintiff, and referred to her. No damage was offered to be shown except such as would be implied from the fact of such a publication.

The judge ruled, as matter of law, that the publication was not in itself libellous or actionable; and directed the jury to return a verdict for the defendant.

The jury returned a verdict for the defendant on all the counts; and the plaintiff alleged exceptions.

Exceptions sustained.

W. H. Moody, (N. C. Bartlett with him,) for the plaintiff.

I. A. Abbott, for the defendant.

Field, J. W. Allen & Holmes, JJ., absent.

OPINION

Field, J.

The plaintiff was tenant at will of the defendant. That tenancy was determined by the execution and delivery of the written lease to Peters, if it was executed and delivered. Peters after the delivery of the written lease to him and notice thereof to the plaintiff, could, by himself or his agents, take possession and eject the plaintiff, using such force as was reasonably...