Boynton v. Bodwell

113 Mass. 531 | Mass. | 1873

Morton, J.

It appeared at the trial that the plaintiff let the premises in question to the defendant, by an oral agreement, for five years from May 1, 1871. This created a tenancy at will only. Gen. Sts. c. 89, § 2. There was conflicting testimony as to whether the rent was payable quarterly or monthly; but the jury having found that it was payable monthly, that fact is to be taken as settled. It follows, therefore, that either party could determine the estate at will by one month’s notice in writing given for that purpose to the other party. Gen. Sts. c. 90, § 31. The defendant undertook to terminate the tenancy by the written notice, a copy of which is set out in the bill of exceptions. This notice was defective and informal, in that it did not state the time when he should vacate and deliver up the premises. Currier v. Barker, 2 Gray, 224. The defendant relied upon proof that the plaintiff had waived any informality or irregularity in the notice, and accepted it as sufficient to terminate the tenancy on the first of December, 1871. If the plaintiff, knowing that the notice was intended to terminate the tenancy on that day, waived any objection to its informality, or by his words and conduct led the defendant reasonably and properly to understand that he waived such informality, he cannot now object that the notice was insufficient.

The instructions of the presiding judge as to what would constitute such waiver are not stated in the bill of exceptions. They were not excepted to, and we must assume that they were correct and appropriate. But the plaintiff asked the court to rule that there was not sufficient evidence to prove a waiver by him. We are of opinion that the presiding judge properly refused this ruling. The testimony was conflicting, and it was the exclusive province of the jury to decide upon the credibility of the witnessess and the weight of the evidence. The defendant testified that, soon after the notice was sent, the plaintiff called and had an interview with him in regard to his vacating the premises; that the plaintiff made no objection to the notice, but tried to induce him to remain by offering to reduce the rent and to make some improvements in the premises; that the plaintiff afterwards sent Eames to him to make the same proposition; that he left in the middle of November and sent the keys to the plaintiff, and that the plaintiff never objected to the sufficiency of the notice. It was for the jury to say whether the fair inference from all the evidence was that the plaintiff waived any informality in the notice.

We are also of opinion that it was competent for the defendant to show, under the pleadings, a determination of the tenancy, and a waiver of notice. The answer is a general denial. The fact that the tenancy was terminated on December 1, is not a substantive fact in avoidance of the action. Its purpose and effect was to meet and disprove the plaintiff’s allegation, and not to avoid or discharge his cause of action. Warren v. Ferdinand, 9 Allen, 357. Verry v. Small, 16 Gray, 121. The evidence of the conversation between the parties, at the time the lease was made, as to the light of the premises, was admitted as bearing upon the question of waiver. For that purpose it was competent.

The ruling that upon the facts found by the jury the plaintiff was entitled to a verdict for sixty-six dollars and sixty-six cents with interest was correct. The effect of the waiver found by the jury was, that the notice was to be treated as though it had specified the first of December as the time when the tenancy was to terminate. The rent being payable monthly, it follows as matter of law that after such a notice the tenancy was determined on that day, and the plaintiff’s right to recover rent then ceased.

Exceptions overruled.