311 Mass. 401 | Mass. | 1942
The plaintiff is the admitted owner of a parcel of real estate in Boston. Allegations of its bill are that it leased the premises to the defendant and that, as a part of the same transaction, the defendant sublet them to the plaintiff; that the sublease contains “a covenant . . . against nonpayment of . . . rent” and a provision that upon failure to pay, the defendant is entitled to terminate the entire estate of the plaintiff in said sublease; that the plaintiff owes the defendant for rent and that the latter has declared the sublease terminated for alleged nonpayment of rent. There is a further allegation that the defendant has commenced an action of summary process. (See G. L. [Ter. Ed.] c. 239, § 1.) There are prayers for an accounting of the sums due for rent, that the amount due the defendant be determined, and that upon payment of the amount found due, “the defendant’s termination of said sub-lease for said non-payment be declared void . . . The defendant answered that it was willing, upon payment to it by the plaintiff of all sums due under the provisions of the sublease, that its termination be declared void. The answer further alleged that the defendant will be hampered, delayed and obstructed in the payment of the sums found due and in obtaining possession of the premises unless relief is afforded, and there is a prayer that the plaintiff be ordered to pay said' amount, and further, unless it pays, that it be ordered to surrender possession of the premises to the defendant and be enjoined from interfering with the latter’s use and enjoyment of them.
The suit was referred to a master, whose report recites that by the order of reference he was directed to take account of all sums due the defendant under the sublease. He found the sums due, and a final decree was entered ordering the plaintiff to pay the defendant the amounts so found due with interest and. costs. The decree also provided that if the plaintiff shall pay said amounts within twenty-one days from the date of decree, the defendant’s termination of the sublease shall be void, and the defendant “shall discharge of record the possession taken by . . . [it] of the premises described . , , but if the plaintiff does
The plaintiff contends that the final decree should not have required the defendant to “discharge of record the possession taken by” it. This provision would seem to be favorable to the plaintiff unless, in "the event that it should not comply with the decree by payment of the amounts found due, the question whether the sublease had been terminated would then be left for further litigation. Nevertheless, we are unable to find anything in the record that warrants the insertion in the decree of this quoted clause and are of opinion that it should not have been included. See Morin v. Clark, 296 Mass. 479, 487.
The plaintiff further contends that the decree should not have contained the order that, if it does not pay the amounts found due, it shall surrender possession of the premises to the defendant and be enjoined from interfering with the latter’s use and enjoyment of them. It bases this contention, in part, upon the terms of the sublease as to the time when the lessor may enter for nonpayment of rent. It appears from the master’s report that the sublease was in evidence before him, but it is not incorporated in the record before us. The plaintiff has printed what purports to be a copy of it in its brief, but in accordance with the well established rule, it cannot be given any consideration in the decision of the questions that are presented by the record. Gorey v. Guarente, 303 Mass. 569, 570, 571.
The bill plainly alleges that nonpayment of rent entitled
Rule 32 of the Superior Court (1932) provides, among other things, that in equity cases the answer may set up any counterclaim of a legal nature, against any one or more of the parties, arising out of the transaction that is the subject matter of the suit. The word “transaction” in this rule should be construed in a sense “to effectuate the settlement in one proceeding of controversies so closely connected as appropriately to be combined in one trial in order to prevent duplication of testimony, to avoid unnecessary expense to the parties and to the public, and to expedite the adjudication of suits. It has been said that in ‘a general sense, a transaction is where both causes of action proceed from the same wrong.’” Potier v. A. W. Perry, Inc. 286 Mass. 602, 608. No answer, as required by Rule 26 of the Superior Court (1932), was filed to the alleged counterclaim in the case at bar. Although it does not appear in the record before us that any copy of the counterclaim was sent to the plaintiff, as required by Rule 21, nevertheless we are of opinion that, in the circumstances, the plaintiff must be held to have waived any objection that it may have had to the counterclaim based on the ground of want of equity. Potier v. A. W. Perry, Inc. 286 Mass. 602, 609. We assume that the order of reference to the master was for a limited purpose only. Other questions arising upon the pleadings were for the determination of the court, and we think that enough appears to warrant our conclusion as to waiver. See Royal Indemnity Co. v. Perry, 296 Mass. 149, 153.
We are of opinion that the plaintiff cannot be heard to complain of so much of the decree as says, in effect, that if
Ordered accordingly.