270 Mass. 260 | Mass. | 1930
This is an action of contract. The plaintiffs seek to recover for thirty-one weeks’ rent of a room from August 27, 1927, to April 1, 1928. The answer was a general denial, payment and illegality.
The rental was $6 a week. The plaintiff “furnished said room with a large round table.” The defendant and certain of his friends occupied the premises as a club room from January, 1927, to April 1, 1928, paying rent from January to August 27, 1927. It was found that one of the plaintiffs, Garvey, who let the room, had reason to believe “at the time of the letting . . . that it was to be used as
Every building, place or tenement which is resorted to for illegal gaming is a common nuisance. G. L. c. 139, § 14. If the plaintiffs knew that the premises were used for an illegal purpose they cannot recover. See Simpson v. Wood, 105 Mass. 263; Graves v. Johnson, 156 Mass. 211; Kemp v. Hammond Hotels, 226 Mass. 409. Knowledge by the landlord of the illegal use of the premises is generally a question of fact. Kemp v. Hammond Hotels, supra, page 416. It was said in Way v. Reed, 6 Allen, 364, at page 371: “To deprive the lessor of his right to recover rent, it would be necessary to show actual and not merely constructive knowledge of the illegal occupation of the demised premises.” But knowledge which prevents recovery of rent does not mean actual personal observation of the illegal gaming; it means notice of such circumstances as would lead the landlord to such knowledge. Kemp v. Hammond Hotels, supra. Knowledge that the occupants were engaged in a game of cards, which is perfectly legal, is not as matter of law the equivalent of notice of such circumstances as would lead the owner of the premises to know of the illegal use.
It was found, however, that Garvey, one of the plaintiffs, on several occasions during the tenancy visited the room and saw the occupants playing poker and using chips as counters; and at some time during the tenancy, the exact time not being fixed, he knew that the premises were used for
A landlord may recover rent if the tenant used the premises for illegal gaming, if the landlord has no knowledge of the illegal use or no notice of such circumstances as would lead him to knowledge. But from the time the landlord has such information, if the illegal use continues, he cannot recover rent; he is a party to the illegality. See Jennings v. Throgmorton, Ry. & Moody, 251.
In our opinion there was some evidence that the plaintiffs knew that the premises were resorted to for illegal gaming, and the knowledge that poker was played in the manner described gave them sufficient information of the illegal use. There was error in refusing the second request of the defendant. Let the entry be
Order dismissing report reversed.
New trial ordered.