Ashkenazy v. O'Neill, 267 Mass. 143

Ashkenazy v. O'Neill

267 Mass. 143 | Mass. | 1929

Crosby, J.

This is an action of contract for the use and occupation of certain premises. G. L. c. 231, § 7, Eighth. At the conclusion of the evidence the trial judge directed a verdict for the plaintiff, subject to the defendants’ exception.

The plaintiff was the owner of an apartment house consisting of five apartments; one on the first floor; two on the second floor, one with three rooms, and the other with four, and both having kitchenette and bath; and two apartments on the third floor, each consisting of three rooms, kitchenette and bath. On November 11, 1923, the defendants paid the plaintiff for one week’s rent to begin November 13, 1923, for an apartment on the third floor; the defendants never occupied that apartment, but on November 17, 1923, they took possession of an apartment on the second floor.

The parties on November 19, 1923, signed a lease in writing and under seal dated November 13 wherein a rent of $15 a week was provided for and the leased premises were described as "four rooms and kitchenette and bath on the third floor, right of the house . . . .” There was no apartment of four rooms and kitchenette and bath on the third floor. After the date of the lease but before it was executed, and without the defendants ever having occupied the apartment therein described, the plaintiff agreed that the defendants would take the apartment of four rooms on the second floor instead of the apartment on the third floor. This agreement amounted to a surrender of the premises described in the lease, and the substitution of the apartment on the second floor; the occupancy by the defendants of the latter was as tenants at will. The notice to terminate the tenancy offered in evidence was adequate in form for *145that purpose. G. L. c. 186, § 12. If it was proved that the notice was seasonably delivered to the plaintiff’s husband, that was sufficient service thereof; it was not required that it be served upon the plaintiff personally. Delivery of such a notice to the wife of a person is sufficient “on the ground that that fact would furnish presumptive evidence that the defendant received the notice.” Steese v. Johnson, 168 Mass. 17, 19. Walker v. Sharpe, 103 Mass. 154. These cases in principle are pertinent to the case at bar. If the defendants on June 30, 1924, occupied the apartment on the second floor as tenants at will, and on that day served written notice on the plaintiff that they would vacate the premises on July 7, 1924, and the rent was paid to that date, nothing would be due the plaintiff. The written notice should have been admitted. The exception to its exclusion and the exception to the direction of a verdict for the plaintiff must be sustained.

So ordered.