99 Mass. 383 | Mass. | 1868
These three actions, which were tried together grow out of the relations of the parties under a written lease from the defendant to said Emeline, dated May 9, 1866, of his house and furniture for one year, subject to the condition that she should pay rent therefor in the manner therein provided, and perform all her agreements therein contained. The rent was payable monthly in advance, on the first day of each successive month. And the lessee further agreed at her own proper charge and expense to board the lessor, together with his own immediate family; and to board one domestic servant in his, the lessor’s, employ, at such reasonable rate as the parties should thereafter agree upon.
The defendant offered to prove, in defence of all the actions, that the first month’s rent was paid in- money in advance, and at the end of that month he demanded the rent for the ensuing month. Payment was at first refused unless allowances were' made for the board of certain visitors in his family; and again refused unless the defendant would allow for board of his servant ; and finally, unless the board of himself, and his wife and infant child, was allowed, in payment of rent. These several allowances the defendant refused to maim, and the plaintiff refused to pay rent or board him or any of his family.
While the defendant and said Emeline maintained this attitude, namely, June 20, 1866, she brought the first of the above actions, in contract, to recover on an account annexed the three items, of board of the defendant and his wife, of the defendant’s servant, and of his four friends and visitors. And in this case we are of opinion that, by the true construction of the lease, the plaintiff agreed to board the defendant and his wife at her own charge and expense. This stipulation seems to have entered into the consideration for the lease, and no recovery can be had upon the item. Under the next small item for board of the servant, upon the pleadings as they stand, no application thereof having been made or being now asked upon the rent due to the defendant, the plaintiff, for anything that appears, would be entitled to recover a reasonable compensation. And upon
In reference to the other case in favor of said Emeline, the defendant offered to prove that, after having repeatedly demanded payment of rent and board for himself and family, which she refused to pay or furnish, and after the commencement of the first suit, in which his property was attached, to wit, on the 23d of June, he entered and dispossessed the said Emeline, and ejected said Louisa from his house, using no force unreasonable in kind or degree. This action in tort was after-wards on the same day commenced. Upon the terms of the lease and the facts offered to be shown, we are of opinion that the defendant was justified in so peaceably dispossessing the plaintiff. The rent was due and unpaid. It had been demanded, as well as the board agreed to be furnished; and both were refused. The payment was indeed withheld by the plaintiff on the claim that certain allowances should be made her for board; but it does not appear from the case that the sum which the plaintiff was legally entitled to for board was sufficient to meet the whole rent then due. If at law, and without the interference of a court of equity, the plaintiff could avoid a forfeiture by showing that the defendant was indebted to her, under the terms of the lease or otherwise, in a larger amount than the rent due, the case as presented does not show that fact. The verdict in the plaintiff’s action of contract was submitted to, it would seem, upon the agreement that the question of the amount to be recovered in oa h case should in any event be again open to him in the superior court. And a finding in that action of an amount due from the defendant on the day of its commencement, June 20, exceeding the rent then due him, would not alone prove that there was that amount due for board on June 1, the day the rent fell due. The use of the word “ allowance ” implies that she expected to apply it only in part payment; ant
If the counter claims of the plaintiff arising under the provisions of the lease were sufficient to balance the claim for rent, it may be that the lessor could not insist upon a forfeiture. The right to apply them by way of satisfaction or set-off could not be disputed. But here the principal item in the plaintiff’s account arises entirely outside of the lease ; and no evidence was offered to support it. And besides, before the entry of the defendant, she had commenced an independent suit and attached his property to recover the amount of her account, no longer seeking to apply it on the rent.
In the last action of Emeline, and in the case of Louisa, to which the same reasoning applies, therefore the entry must be
Exceptions sustained.
