Duncklee v. Webber

151 Mass. 408 | Mass. | 1890

C. Allen, J.

The court having ordered a verdict for the defendant, we have only to consider whether in any aspect of the case a verdict for the plaintiff would have been warranted.

1. There was sufficient evidence that Lincoln and Son had authority to let the premises for three years. One of the firm testified that the defendant “ told us to let the house for eight hundred dollars a year, and the time was three years.” Shortly after the letting, (the time is not stated exactly, but the jury might have found it to be in the following month,) the witness informed the defendant of the renting of the estate to the plaintiff, and of the collection of one month’s rent. Afterwards a settlement was had, in which Lincoln and Son were allowed a commission on the stipulated rent for three years. Authority by parol was sufficient. Shaw v. Nudd, 8 Pick. 9. Heard v. Pilley, L. R. 4 Ch. 548.

2. The papers executed amounted to a present lease of the premises. No further or more formal lease was contemplated. Shaw v. Farnsworth, 108 Mass. 357. McGrath v. Boston, 103 Mass. 369.

3. The mode of signing the paper A was sufficient to bind the defendant. The contrary is not contended in the argument. Goodenough v. Thayer, 132 Mass. 152. Amory v. Kannoffsky, 117 Mass. 351. Gowen v. Klous, 101 Mass. 449, 454.

4. There was an implied covenant for quiet enjoyment during the term. The papers A and B constituted a lease for three years. The rent was to be paid during that time. The papers contain nothing to control the ordinary implication that the lessee shall have quiet enjoyment. Ellis v. Welch, 6 Mass. 246, 250. Dexter v. Manley, 4 Cush. 14, 24. Foster v. Peyser, 9 Cush. 242, 246. O'Connor v. Daily, 109 Mass. 235. Mack v. Patchin, 42 N. Y. 167. Mostyn v. West Mostyn Coal & Iron Co. 1 C. P. D. 145, 152. Bandy v. Cartwright, 8 Exch. 913. Hall v. London Brewery Co. 2 B. & S. 737.

5. There was evidence of a breach of this covenant. The defendant had given a prior mortgage, the assignee of which made an entry for foreclosure, and sold the premises under a power of sale contained in the mortgage, and the purchaser gave notice to the plaintiff to vacate the premises, with a threat of legal process to eject him. The plaintiff could not defend against this- title, and might properly yield to it without a suit. King v. Bird, 148 Mass. 572. Carpenter v. Parker, 3 C. B. (N. S.) 206.

6. The doctrine that an implied covenant of a life tenant ceases with his life does not apply. Adams v. Gribney, 6 Bing. 656.

7. There was evidence of special damage. The plaintiff had to remove from the premises, and to seek another place of residence. And he testified that the fair rental value of the premises was more than he was paying, and that property in that vicinity had recently risen in value.

New trial granted.