237 Mass. 29 | Mass. | 1921
This is an action of tort to recover damages alleged to have been sustained by a tenant under a written lease through wrongful eviction from the demised premises by his landlords.
The case comes before us on report. It must be presumed, in the absence of indications to the contrary, to state all the evidence material to the questions of law presented. The rule as to omission of exceptions to declare that all material evidence is nar
There is much to be said in support of the logic of the position that this form of action will not lie and that the only remedy is by an action of contract for breach of the covenant for quiet enjoyment. Actions of this sort,.'however, are to be found in our reports. Such an action was sustained in the well considered case of Fillebrown v. Hoar, 124 Mass. 580, although this point was not much discussed. Kostopolos v. Pezzetti, 207 Mass. 277. See Riley v. Lally, 172 Mass. 244, and Brown v Holyoke Water Power Co. 152 Mass. 463. Since it has been held that even in an oral lease there is an implied covenant of quiet enjoyment, Budd-Scott v. Daniell, [1902] 2 K B. 351, 357, the action of tort for eviction held maintainable in Ashley v. Warner, 11 Gray, 43, would appear to be a direct authority in favor of the present action. The current of authority in other jurisdictions is to the same effect. Although the tenant may sue on the covenant for quiet enjoyment, he may elect to treat the eviction by the landlord as an unlawful invasion of his rights and sue in tort. Schienle v. Eckels, 227 Penn. St. 305. Dawson v. Marsh, 74 Conn. 498. Rowbotham v. Pearce, 5 Houst. 135. Schwartz v. McQuaid, 214 Ill. 357. Silber v. Larkin, 94 Wis. 9. Front v. Hardin, 56 Ind. 165. Wacholz v. Griesgraber, 70 Minn. 220. Shuman v. Smith, 100 Ga. 415. Taylor v. Cooper, 104 Mich 72. Robrecht v. Marling, 29 W. Va. 765. No decisions to the contrary have come to óur attention. See, however, Underhill, Land. & Ten. 1187. Compare Tiffany, Land. & Ten. 1291.
The passenger injured in the course of his transportation by a' common carrier rarely sues in contract for breach of his contract for carriage, but commonly in tort for negligence. When the landlord commits the direct wrong of expelling his tenant from demised premises during the life of the lease, it would be hard to say on principle even apart from authority that an action would not lie for breach of duty thus committed. When a landlord without right ousts a tenant from the demised premises, the act complained of at least, if not also of necessity the means by which it is accomplished, are unlawful. That is one common test for determining whether an act causing an injury to another
“To constitute an eviction . . . there must either be an actual expulsion of the tenant, or some act of a permanent character, 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. Lumiansky v. Tessier, 213 Mass. 182, 186. Aguglia v. Cavicchia, 229 Mass. 263. done by the landlord with the intention and effect of depriving
There was evidence which would warrant a finding that the plaintiff was absent from the demised premises, which were used for a store, for a period of more than two weeks, and that during that time the store was unoccupied except for a small stock of goods. When the plaintiff returned with several companions he was unable to open the street or front door of the store with his key. He gained access to the store through a rear door. It was observed then that a key was on the inside of the front door. A conversation,then occurred between the parties, during which the plaintiff demanded his store and said he had brought young men with him to start business and they were ready to begin work at once, and the defendant Morrill denied him possession of the store and said there was money due him and the plaintiff could not start business until that was paid to him, and that he would not let the plaintiff start business. That statement was repeated by Morrill in various forms of words, and the plaintiff replied, “ If I can’t do anything, I got to go out.” Whereupon the plaintiff left. There was no evidence that at this time there had been any breach of the covenants and conditions of the lease by the lessee.
This was sufficient to warrant a finding of eviction. The inference was warranted that the defendant Morrill had taken possession of the store and had fixed the lock of the front door so that the plaintiff could not use it, and that he refused to give over possession again except upon payments of money which he had no right to exact from the plaintiff. Although physically the plaintiff was in the store for a few minutes, he did not have the means of using it as a tenant and he was there under the dominating possession of Morrill. The plaintiff was not bound to resort
The case rightly was submitted to the jury. It was error later to enter a verdict in favor of the defendants in accordance with leave reserved with the assent of the jury under St. 1915, c. 185.
After the actual verdict of the jury was returned in favor of the plaintiff, the defendants filed a motion for a new trial on various grounds. Without passing upon that motion, the judge after ordering a verdict for the defendants, reported the case. Fuller v. Andrew, 230 Mass. 139. That motion for a new trial must now be passed upon and decided.
The verdict for the defendants, ordered to be entered by the judge after verdict actually returned by jury, is set aside. The verdict in fact rendered by the jury in favor of the plaintiff is to stand and judgment is to be entered upon it unless it shall be set aside after hearing upon the motion of the defendants to that end already filed. Kaminski v. Fournier, 235 Mass. 51, 55.
So ordered. ,