126 Mass. 143 | Mass. | 1879
The statute provides that “ estates at will may be determined by either party, by three months’ notice in writing for that purpose given to the other party; and when the rent reserved is payable at periods of less than three months, the time of such notice shall be sufficient if it is equal to the interval between the days of payment.” Gen. Sts. o. 90, § 31.
This statute provides a mode in which, in the absence of any agreement of the parties, estates at will may be determined, but it does not provide that they may not be determined in any other mode. Thus, if a tenancy at will is for a definite period, as for a year or a month, it is determined by its own limitation, without any notice. So also it is familiar law that, if the lessor alienates Iris estate by a deed or a written lease, this terminates the tenancy, and the lessee is not entitled to the statute notice.
In Farson v. Goodale, 8 Allen, 202, there was evidence that the defendant, who was a tenant at will, left the premises by the consent of the landlord, who said he should not require a written notice, and it was held that the tenancy was terminated; the court saying in the opinion, that “ a tenancy at will may be terminated at any time and in any manner which may be mutually agreed upon by the parties.” In May v. Rice, 108 Mass. 150, the defendant was a tenant at will under an oral lease by which the rent was payable quarterly. The parties made an oral stipulation that either party might “ terminate the tenancy by giving one month’s notice to the other in writing.” It was held that the tenant by giving one month’s notice according to the agree
The plaintiff relies upon the case of Batchelder v. Batchelder, 2 Allen, 105. In that case the defendant asked the court to rule that, if “ the contract between the parties was that he might quit the premises whenever he pleased, no notice of his intention to quit was necessary,” which the court refused. A tenancy at will is one which may be terminated at the will or pleasure of either party. The contract relied on by the defendant went no further than to show that he was a tenant at will; it contained no stipulation as to the time or mode in which the tenancy might be terminated, and therefore the court held that the statute applied to it, and it could not, in the absence of any agreement of the parties, be terminated without notice.
That this was the view taken by the court is apparent from the fact that the opinion does not discuss or refer to the question whether the parties might by agreement terminate a tenancy a. will in a mode different from that provided by the statute, and from the further, fact that within three years thereafter the court, consisting of the same judges, decided the case of Farson v. Goodale, ubi supra, which is inconsistent with and would overrule Batchelder v. Batchelder, if the construction which the present plaintiff puts upon that case is correct.
In the case at bar, there was evidence oh the part of the defendant that the parties agreed that the defendant should have “ liberty to leave the premises at pleasure and at a moment’s notice.” The stipulation as to notice may imply that the parties intended to substitute for the notice required by the statute an agreement that the tenancy might be terminated upon a moment’s notice by the lessee. If the jury were satisfied that such was the agreement, the defendant would not be hable for rent after he had quit the premises and had given notice thereof to the plaintiff.
We are therefore of opinion that the case should have been submitted to the jury, and that the ruling directing a verdict for the plaintiff was erroneous.
Exceptions sustained.