3 Mass. App. Ct. 774 | Mass. App. Ct. | 1975
The plaintiff (McCauley), trustee of a trust, the developer of a shopping center, brought an action against Sons Pharmacy, Inc. (Sons), for rent (the first case). A lease was executed by the parties in October, 1971. The initial term of the lease, commencing January 1, 1972, was for one year with the rent $1,000 a month. Sons had an option to extend the lease for an additional two years with the rent increased to $1,100 a month. Sons occupied the premises from January 1, 1972 through May 24, 1973 when the premises were sold by McCauley. In this action McCauley sought to collect rent of $1,000 for the month of December, 1972 and $1,100 a month from January 1, 1973 through May 24, 1973. Sons filed an answer in recoupment which alleged that McCauley breached a covenant in the lease requiring him to complete the shopping center within a reasonable time and to make all reasonable efforts to obtain suitable tenants for the center. 1. The judge was correct in directing a verdict for Mc-Cauley in his action for rent in the full amount sought. The evidence showed that Sons paid rent for the months of January through November, 1972 only. The burden of proving payment for the period, December, 1972 through May 24, 1973, was on Sons (Finkelstein v. Sneierson, 273 Mass. 424, 428 [1930]; Fuge v. Quincy Co-op. Bank, 300 Mass. 296, 298 [1938]), and no evidence was introduced which would have warranted the jury in finding that any payment was made for that period. As indicated by the testimony of the president of Sons that its rent liability from January 1, 1973 through May 24, 1973 was $1,100 a month, there was no dispute as to the amount of rent due for that period. 2. Sons contends that it was error for the judge to have directed a verdict in favor of McCauley on Sons’ answer in recoupment. Contrary to McCauley’s argument, Sons’ claim for breach of covenant was properly raised by an answer in recoupment. Holbrook v. Young, 108 Mass. 83, 85 (1871). Taylor v. Finnigan, 189 Mass. 568, 575 (1905). Although there was evidence to warrant a finding that McCauley breached that covenant, if Sons could show no evidence of damage, no case in recoupment was made for the consideration of the jury. Bank of U. S. v. Thomson & Kelly Co. 290 Mass. 224, 228 (1935). Carney v. Cold Spring Brewing Co. 304 Mass. 392, 396 (1939). Sons attempted to establish, as an element of damage, that during its first seventeen months of operation it incurred unanticipated losses as a result of McCauley’s breach. To show this, Sons sought to introduce the expert opinion of its accountant as to losses Sons would have incurred had McCauley not breached the covenant. This evidence was properly excluded. The record does not show that proper foundation was laid to remove it from the realm of speculation. Since Sons was a new business, no established earnings record existed upon which such an opin
So ordered.
