Williams v. Seder

• Decision Date: 29 May 1940
• Citation: 27 N.E.2d 708,306 Mass. 134
• Parties: WILLIAMS v. SEDER (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 134

27 N.E.2d 708

WILLIAMS

v.SEDER (two cases).

Supreme Judicial Court of Massachusetts, Worcester.

May 29, 1940.

Exceptions from Superior Court, Worcester County; Swift, Judge.

Actions for rent by Carrie L. Williams against Harry Seder. Judgments for plaintiff, and defendant brings exceptions.

Exceptions sustained.

F. P. McKeon, of Worcester, for plaintiff.

H. Seder, of Worcester, for defendant.

RONAN, Justice.

In the first action the plaintiff seeks to recover rent for certain premises in Webster at the rate of $100 a month for five months commencing with December, 1935; and, in the second action, rent for the same premises at the rate of $100 a month for four months commencing with May, 1936, and at the rate of $200 a month for nine months commencing on September 1, 1936. The cases were heard by an auditor, who found for the defendant in the first action, and for the plaintiff in the second action for twelve months' rent at $80 a month. The cases were thereafter tried upon the report, with other evidence, before a judge who found for the plaintiff in each action, in the first in the sum of $100 and in the second in the amount of $2,251.40. The cases are here upon the exceptions taken to the refusal to grant the defendant's requests for rulings.

The defendant was a tenant at will of the plaintiff for several years, occupying her premises for the storage of flour and grain and paying rent at the rate of $80 a month. Commencing in 1931, the plaintiff began to complain to the defendant that he was overloading her premises and that if he continued to overload her building she would be obliged to increase the rent. The defendant owns a building adjoining the plaintiff's premises, and it could be found that the defendant has overloaded his building to such an extent as to cause the eaves to project against the wall of the plaintiff's building for a distance of sixty feet, throwing this wall out of plumb and causing it to incline away from the defendant's premises. Besider, there is a large bulge in the wall of the defendant's building which extends over the land of the plaintiff and nearly comes in contact with her building.

The auditor found that the plaintiff, on November 1, 1935, gave the defendant a note signed by her to the effect that, commencing with December 1, 1935, the rent would be $100 a month; and that she gave him another note on July 30, 1936, advising him that the rent, commencing with the next rent period, would be $200 a month payable in advance. He found that the defendant expressly refused to agree to pay the increased rental and that his tenancy at will continued at the rate of $80 a month. The only material oral evidence at the trial besides the report of the auditor was the testimony of the plaintiff that she had given a written notice to the defendant in 1934 that his rent was to be $90 a month and told him the rent would be increased to $90 if he did not cease overloading her building and did not prevent his structure from damaging her building, and that, upon his promise that he would not overload her building and would move his building away from hers, she agreed to allow the rent to remain at $80 a month. The plaintiff is not shown by the record to have ever thereafter demanded the rent at the rate of $90 a month or to have taken any steps to require the payment at this rate or to recover damages for the failure of the defendant to pay it, but instead she sought at the trial to recover rental at the rates fixed in the written notices that she gave the tenant on November 1, 1935, and July 30, 1936, which applied only to the rental for succeeding months. This conversation in 1934 did not amount to anything more than an expression of opinion that, if the defendant did not cease from improperly using the plaintiff's premises and desist from permitting his building to injure her property, she would increase his rent. Adler v. Safeguard Ins. Co., 288 Mass. 409, 413, 192 N.E. 922. She tried the cases on that theory and apparently the finding of the judge was made at the rate fixed by these notices.

A tenancy at will arises out of an agreement, express or implied, by which one uses and occupies the premises of another for a consideration-usually the payment of rent. The relation between the tenant and the landlord is contractual. Central Mills Co. v. Hart, 124 Mass. 123; Porter v. Hubbard, 134 Mass. 233;Lindsey v. Leighton, 150 Mass. 285, 22 N.E. 901,15 Am.St.Rep. 199;Crowe v. Bixby, 237 Mass. 249, 129 N.E. 433. Such a tenancy could be terminated by a written notice in accordance with G.L.(Ter.Ed.) c. 186, § 12, by operation of law as by a sale or lease of the premises, or by an agreement between the parties. King v. Lawson, 98 Mass. 309.Torrey v. Adams, 254 Mass. 22, 149 N.E. 618, 43 A.L.R. 1447;Mescall v. Somerset Savings Bank, Mass., 26 N.E.2d 609. The notices purporting to increase the rent were not notices to quit, and the plaintiff never...