255 Mass. 477 | Mass. | 1926
This is an action of tort for eviction. A count in contract was waived. The defendant, after making a general denial, sets up in its answer a termination of the lease by it after the premises were so destroyed or
On February 26,1923, the day after the fire, the defendant notified the plaintiff that, in accordance with the provisions of the lease relating to its termination in the event of damage by fire, the lease was thereby terminated. The plaintiff in reply, February 28, 1923, stated that it was taking immediate steps to vacate the premises and was doing this with the idea, as suggested by the defendant’s agent, of facilitating the defendant’s work in making necessary repairs; but stating that in so vacating it was in no way waiving rights which it had to compensation for the cancellation of the lease. There was no other correspondence until April 2, 1923, when the plaintiff wrote the defendant that its bowling alleys had been entirely removed from the premises, enclosed the key, requested the return of the deposit held as security for the rent with interest, and demanded payment of the amount, to which it was entitled because of the cancellation of the lease. In reply to this letter the defendant wrote that it would arrange for the return of the deposit but could not agree that the plaintiff was entitled to any money on account of the termination of the lease, and stated that the lease was terminated on account of a fire which occurred on the premises, a condition provided for in the lease for its termination. The deposit was returned later.
The agent of the defendant testified that he told the plaintiff’s agent that the notice from the defendant would have to be complied with; that the fire warranted notice of termination; that the defendant did not do anything to interfere with the possession of the premises by the plaintiff until the keys were returned; and that after the keys were returned the defendant took possession and occupied the leased premises.
“To constitute an eviction . . . there must either be an actual expulsion of the tenant, or some act of a permanent character, done by the landlord with the intention and effect of depriving the tenant of the enjoyment of the demised premises or some part of it, to which he yields, abandoning the possession within a reasonable time.” Bartlett v. Farrington, 120 Mass. 284. Skally v. Shute, 132 Mass. 367. “To constitute a constructive eviction ... it must affirmatively appear that by his intentional and wrongful act the landlord has deprived the tenant of the beneficial use and enjoyment of the whole, or a part of the leasehold.” Taylor v. Finnigan, 189 Mass. 568, 573. Smith v. Tennyson, 219
Exceptions overruled.