Kimball v. Cross, 136 Mass. 300

136 Mass. 300 | Mass. | 1884

Devens, J.

The defendant desired the court to rule that the lease under which he entered had no operative force after the expiration of one year, even if he availed himself of the privilege of continuing, named. therein. The instrument, which was dated November 24, 1879, recited that the plaintiffs had leased to the defendant the premises “ for the term of one year for seventy-five dollars, with the privilege of continuing five years at one hundred dollars per year; ” and the instruction requested treats the latter clause as a mere executory contract for a lease thereafter to be given, should the defendant desire it. But the instrument upon its face purports to be the contract upon which the subsequent occupation, at the election of the defendant, is to be enjoyed. By it the relations and rights of the parties are defined, and the words are apt to create a then present demise when, at the end of the first year, the occupation is continued. Kramer v. Cook, 7 Gray, 550. Weld v. Traip, 14 Gray, 330. McGrath v. Boston, 103 Mass. 369.

To the refusal of the court to rule as requested, the defendant had no just ground of exception, nor do we perceive that he had any to the ruling given. This left it to the jury to determine whether the defendant had elected to continue in possession, after the expiration of one year, under the lease. Upon this question, the facts that, after the expiration of the first year, he continued to occupy the premises, with the building which had been erected by him, that he was not ready then to move, hoping, as he said, to interest New York parties, and that he paid rent subsequently, of all which there was evidence, were competent. If satisfactory to the jury, they were sufficient to entitle them so to hold. Whether either or all of these circumstances, if taken- together, are not conclusive, as the defendant contends, is not important, as the jury were not instructed that they were so.

The contention is also that, if still in force, the lease was, as matter of law, affimatively shown to have been surrendered in September, 1881; and the defendant relies on his statement, then made to the plaintiffs’ agent, that he did not wish to keep the premises longer. But he was not entitled, after he had entered upon the additional term, to abandon the premises, and thus absolve himself from the payment of rent, without the assent of the other party. The evidence was uncontradicted that he still continued to occupy the premises with his building; and the only assent to any surrender of which there was evidence was on condition that he would remove his building.

We do not find that any evidence was rejected that should have been admitted. The defendant offered to show that he had not seen the lease. This was in substance an offer to show that, although he had signed the lease, he was ignorant of its contents. It was not pretended that he signed it under any mistake as to what the instrument was, and he cannot be permitted thus to deny a contract which he has made. Parsons v. Gloucester Bank, 10 Pick. 533.

In order to explain the circumstance that he had permitted his building to remain on the leased land, which tended to show a continued occupation of it after the first year, the defendant had been allowed to testify that he was ignorant that it was thus located; but evidence that he had been told by others than the plaintiffs that it was not on the leased land, was simply hear* say, and was rightly excluded.

Exceptions overruled.