Ashley v. Warner

77 Mass. 43 | Mass. | 1858

Thomas, J.

Upon the facts stated in the bill of exceptions the plaintiff was the tenant at will of the four fifths of the premises belonging to Warner.

Of the one fifth owned by Goodale, the other defendant, he was also, upon the facts stated, a tenant at will. Goodale declined to give the plaintiff a lease, but told him “ that so long as he kept a good school, be might have his share of the building.” This agreement of Goodale gave the plaintiff a tenancy at will, but a tenancy with a conditional limitation. It was not on the condition of keeping a good school, but so long as he kept a good school. The distinction is nice and technical, but yet quite familiar law. If the tenancy were upon a condition and there were a breach, the estate would not determine but upon the entry of the lessor for such breach. Being a conditional limitation, the estate determines upon the happening of the contingency, to wit, the ceasing or failure to keep a good school by the plaintiff. If there was such failure, the lessor may enter and expel the lessee. No notice is necessary, because the estate is determined by its own limitation. But the owner must enter at his peril. He must justify himself by showing the limitation has taken effect. That question was open to him upon the facts stated in the bill of exceptions. For this purpose it was competent to show that the plaintiff as a teacher was deficient in literary and scientific acquirements and so incapable of keeping a good school.

This evidence was also competent on the question of damages. And this not only as to Goodale, but as to Warner.

If Goodale satisfied the jury that the limitation had taken effect, that the plaintiff did not keep a good school, he would not be liable for the acts stated in the report, though the plaintiff might still be a tenant at will of the four fifths. The plaintiff could not maintain the action against the cotenant for excluding him from the premises.

As to damages, the court rightly ruled that they were not limited to the date of the writ. The plaintiff, if the defence fails, was entitled to such damages as were the direct result of the expulsion from the academy, and the loss of the lease As however he was but tenant at will, and his tenancy might be determined by three months’ notice, his damages from the loss of the premises were limited to that time. If the tenancy of the one fifth owned by Goodale was determined, the loss would be of a tenancy in common of the premises as the tenant at will of Warner with Goodale, each having a right to the occupation of the premises per my et per tout. Exceptions sustained.