108 Mass. 553 | Mass. | 1871
The evidence at the trial tended to show that the defendant hired the plaintiff’s premises, by paroi, for an indefinite time, agreeing to pay rent monthly in advance. This created a tenancy at will, which can only be terminated in the mode provided by statute, unless by mutual agreement of the parties. Gen. Sts. c. 89, § 2; o. 90, § 31. It follows, that the instructions of the learned judge who presided at the trial were erroneous, unless, upon the facts proved, the tenancy expired by its own limitation at the end of the first month. But there was no evidence in the case of such a limitation. The only evidence was that the tenant agreed to pay the rent monthly in advance. By the paroi lease, and the entry of the defendant under it, an estate at will vested in him, and, as the agreement fixed no time for its expiration, it was for an indefinite period, and would continue until determined in the mode provided by statute, or by the mutual agreement of the parties. The agreement to pay rent in advance was at most a condition subsequent, and not a conditional limitation. This precise question was adjudicated in Elliott v. Stone, 12 Cush. 174. It was there held that a paroi agreement to pay rent quarterly in advance did not constitute a conditional limitation of the tenancy, so as to enable the landlord, upon a failure to pay the rent, to maintain the summary piocess provided by the Rev. Sts. c. 104, without giving a valid notice under the statute. A fortiori, the tenant cannot treat the tenancy as terminated by reason of his failure to comply with his agreement to pay rent in advance.
Upon the facts stated in the bill of exceptions, an estate at will vested in the defendant, which did not terminate by its own limitation at the end of the first month ; and, as he did not give the statute notice, it follows that the tenancy continued, and he is liable for the rent for the second month. Batchelder v. Batchelder, 2 Allen. 105.
Exceptions sustained.