356 Mass. 380 | Mass. | 1969
The defendants appeal from a final decree in the Superior Court enjoining them from prosecuting a summary process action to recover possession of premises occupied by the plaintiff under a written lease. The decree also provided that upon payment of the sum of $1,352.56 by the plaintiff (lessee) to the defendants (lessors) the purported termination of the lease by the lessors shall be void.
The evidence is reported. The judge made comprehensive findings of fact which we summarize.
The premises are located on Canal and Friend streets in Boston where the lessee conducts a furniture business. The
The judge found that any default flowing from the lessee’s failure to pay the additional annual rent because of tax increases was waived by the lessors. He found that the delay in remitting the sum of $2,874.10 demanded by the lessors on January 27, 1967, did not prejudice the lessors and was due to an honest difference of opinion between the parties on the method of computing the additional charge
The lessors do not argue that the judge’s findings are plainly wrong but assume conclusions of fact not found by the judge and argue the legal consequences of the assumed facts. The finding of waiver of default for nonpayment of additional rent prior to 1967 was clearly warranted by way of inference if not by direct testimony. See Younker v. Pacelli, 354 Mass. 738, 741-742.
In all respects the decree was consonant with principles of equity as illustrated by Finkovitch v. Cline, 236 Mass. 196, 199, Judkins v. Charette, 255 Mass. 76, 83, and Mulcahy & Dean, Inc. v. Hanley, 332 Mass. 232, 234.
Decree affirmed with costs of appeal.