137 Mass. 274 | Mass. | 1884
The plaintiff declares, on an account annexed, for commissions, for the loan of a sofa, for the care of a furnace, for cash paid out, for repair of hose, and for rent of rooms. If, under any contract with the defendant not under seal, which has been performed, the plaintiff is entitled to be paid money as commissions, or for the use of a sofa, or for the care of a
Rent reserved in a written lease under seal cannot be declared for in an account annexed; but rent agreed to" be paid under a parol demise, whether written or oral, as it was formerly recoverable under a general count for use and occupation, can now be recovered under a count on an account annexed. Warren v. Ferdinand, 9 Allen, 357. If, therefore, the defendant is indebted to the plaintiff for the rent or use and occupation of real property, as there was no lease under seal, it can be recovered under a count on an account annexed. The exceptions are to the refusal of the court to rule “that there was no evidence that the plaintiff ever rented any rooms to the defendant; ” and to the ruling “ that the findings of the auditor furnished evidence of such use and occupation as would warrant a recovery,” &c. The evidence is not all reported; and we are therefore confined to the last exception. The auditor’s first report found “Balance of rent due plaintiff as per report, $247.87.” In the report, the auditor finds “ that the plaintiff is entitled to receive from the defendant rent for the portion of his tenement taken and let by it, it belonging to his tenement, .... the sum of $481.20; ” that “ the plaintiff should therefore credit the defendant with four years’ rent, .... to wit, the sum of $233.33, which, being deducted from the rent due from the defendant, leaves as a balance of rent due to the plaintiff the sum of $247.87 (instead of item 76 excluded).” In his supplemental report the auditor corrects this item so as to read as follows: “ Damages for breach
We do not think it was competent for the jury to find, on the reports of the auditor, any sum under item 7 6 which was “ for rent of room from August 10, 1864, to date.” If this were merely a misdescription of an item properly included in an account annexed, and we were satisfied that the defendant had suffered no injury, and that the merits had been fully tried, an amendment could be allowed after verdict; but, in this case, we do not know that this claim of the plaintiff could be included