Whittier v. Goldberg

• Decision Date: 29 January 1931
• Citation: 174 N.E. 491,274 Mass. 335
• Parties: WHITTIER v. GOLDBERG (three cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 335

174 N.E. 491

WHITTIER

v.GOLDBERG (three cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 29, 1931.

Exceptions from Superior Court, Suffolk County; Joseph Walsh, Judge.

Three actions by Albert R. Whittier against Maurice E. Goldberg. Directed verdict in favor of plaintiff, and defendant brings exceptions.

Exceptions overruled.J. G. Bryer, of Boston, for plaintiff.

W. M. Blatt, of Boston, for defendant.

CROSBY, J.

These are three actions arising under a written lease for rent therein reserved for the months of December, 1929, and January and February, 1930. A copy of the lease is attahced to the defendant's bill of exceptions. It was for a term of ten years beginning with February 14, 1927. The defence of payment is pleaded in the answers, and raises the only questions presented for decision.

The lease contains the following clause: ‘The lessee as one of the conditions of this lease has deposited Five thousand (5,000) dollars in the name of the lessor, of which Twenty-five hundred (2500) dollars is deposited with the Liberty Trust Company of Boston, and Twenty-five hundred (2500) dollars is deposited with the Bank of Commerce & Trust Company of Boston. If, at the termination of this lease, as herein provided, all rent and other payments due hereunder shall have been paid in full, and the lessee shall have performed and observed all of his other covenants and agreements herein contained, then, and in that event the said sum of Five thousand (5,000) dollars plus any interest allowed by said Liberty Trust Company of Boston and Bank of Commerce & Trust Co. of Boston shall be repaid by the lessor to the lessee, but otherwise such portion of said Five thousand (5,000) dollars plus any interest allowed by said Liberty Trust Company of Boston and Bank of Commerce & Trust Company of Boston as shall equal the amount of any rent, damages or other amounts or charges due hereunder shall be and become the property of the lessor, and the balance, if any, shall be repaid by the lessor to the lessee.’

The deposit provided for in the foregoing clause was made by the defendant, and all rent and other charges due under the lease, except the rent for which these actions are brought, were paid when due. The defendant admitted at the trial that no payment of rent and other charges for the months above referred to had been made ‘except by the automatic application of the deposit.’ He made an offer of proof that he would testify, if permitted, that at the time of signing the lease he had agreed with the plaintiff that if rent was not otherwise paid when due it was to be paid by the application of so much of the deposit as was then payable when and as it became due. The trial judge refused to allow the...