149 Mass. 463 | Mass. | 1889
Whether the defendant moved in July or in September, he would have had to pay the cost of moving his machinery. Therefore he cannot attribute that payment to the plaintiff’s breach of contract, if there was one, in failing to fur nish steam, and thus obliging him to go elsewhere before the end of his tenancy. The instruction that the defendant could not recoup for this item was correct.
The record of the recovery in the summary process by a third person against the plaintiff was rightly excluded. No execution had issued upon the judgment in that suit. The judgment alone did not disseise the plaintiff of the reversion. Indeed, so far as appears, it may not have been rendered until after the defendant’s term. As an. adjudication of facts it was res inter alios. If it had not been res inter alios, it would not have shown that the plaintiff’s title had terminated after the beginning of the defendant’s tenancy at will. If the plaintiff’s title did terminate, the defendant received no notice from the owner of the reversion, and did not attorn to him. The defendant held under the plaintiff undisturbed until the end of his tenancy, and must pay him. See Coburn v. Palmer, 8 Cush. 124.
Exceptions overruled.
