Stone v. St. Louis Stamping Co., 155 Mass. 267

Stone v. St. Louis Stamping Co.

155 Mass. 267 | Mass. | 1892

Knowlton, J.

The lease under which this action is brought, after stating the term as one year, contains the following language : “ It is further agreed that this lease may be extended for two years by lessee’s giving thirty days’ notice of such intention, the conditions to remain unchanged, except that an additional eight and one third dollars per month shall be paid, making the annual rent thirteen hundred dollars.” This does not contemplate the making of a new lease, but provides that the term shall be three years instead of one, if the lessee so elects. It is like the leases set out in Kramer v. Cook, 7 Gray, 550, and Bradford v. Patten, 108 Mass. 153. In order to hold the defendant for rent in this action, the plaintiff must show that the defendant elected to extend the term. This election could not be effectual against the lessor unless the lessee gave thirty days’ notice of it before the expiration of the year. But the provision for notice was solely for the benefit of the lessor, and he could waive it. No writing was necessary, and no formal action, if in fact the lessee elected to hold for the longer term, and if he gave thirty days’ notice of the election, or the lessor waived the giving of notice.

There was evidence that the defendant’s agent, a month after the expiration of the year, being shown the lease, said the increase of rent was all right, and that the defendant would remain and continue to pay. Afterwards the rent was paid monthly, without question, for six months more, before notice was given of an intention to terminate the tenancy.

If the defendant’s agent were the lessee, there could hardly be a question that this would warrant, if not require, a finding that the lease was extended in accordance with its provisions. We are of opinion that the evidence is sufficient to warrant such a finding against the defendant. There was evidence*-that the lease was in possession of the defendant, and that statements of the expenses of the Boston store, including the rent, were sent *271monthly to the office of the defendant in New York, and that the defendant “had seasonable notice of the payment by the agent of the increased rent, as provided in case of a renewal of the lease.” Moreover, the lease provides that, if the lessee holds over, the rent shall be at the original rate. This makes the payment of increased rent significant. Such payments by the defendant, continuing for six months without objection after the interview between the plaintiff and the defendant’s agent, even without its being expressly shown that the defendant’s managing officers were informed of the interview, are enough to justify a jury in finding an election to continue the lease. It may fairly be inferred, without express testimony, that the defendant’s officers understood the circumstances under which the tenancy was continued.

The case, in its principal features, is almost identical with Kramer v. Cook, ubi supra, in which it is said that “ the continuing to occupy the premises, and the payment of the rent at the increased rate stipulated for in case of continuance, were the best possible evidence of the election of the defendant to avail himself of the further term. ... If it was necessary to prove that the election of the defendant was made at the time of the expiration of the three years, the evidence was ample for the purpose. He continued to occupy after the expiration of the three years. He paid the increased rent stipulated for from the time the three years expired. There is nothing in the case to indicate that at any time he claimed to occupy on any other terms.” In Bradford v. Patten, ubi supra, a somewhat similar case, it is implied that much less evidence would present a question of fact on which a finding in favor of the lessor might be made.

The only remaining question is whether this action is barred by the judgment in the former suit between the same parties. That was not for the same cause of action, and so it is not conclusive against the plaintiff, except on such issues as are shown to have been tried and determined in it. Foye v. Patch, 132 Mass. 105, and cases cited. Inasmuch as the record does not show the ground on which it was decided, it was competent to prove it by paroi evidence. But the full report of the evidence taken at that trial was rightly excluded. Much of the evidence *272might have been prejudicial to one or the other of the parties on the points in dispute in this trial, and the defendant had a right to show only what issues were actually tried and determined. To do that, it might be necessary to prove what some of the evidence was, and the defendant was rightly permitted to go as far as it chose in showing what matters were made a subject of testimony, and what issues were finally submitted to the jury. But the defendant failed to go far enough to make it clear that the jury decided that case on issues which are necessarily decisive of this, fj There was a general verdict, and very likely it is impossible to prove what the decision of the jury was on any particular issue, or whether they decided the case on any issue involved in the present suit. At the former trial there was evidence that the keys were returned, and an issue was raised on the question whether the plaintiff had accepted a surrender of the premises, on which evidence was offered on both sides.

We do not know what view the jury took of that evidence, nor whether their verdict against the plaintiff might not have been founded upon it. No evidence was introduced on this issue at the trial of this case, and the defendant cannot now avail itself of a defence depending upon it. The answer in the former case set up the statute of frauds as a defence, and there is nothing to show that the judge may not have ruled in favor of the defendant on that part of its defence, and that the verdict may not have been rendered on that ground. In the present case that defence is not set up in the answer, and is not open to the defendant. The general denial in the answer in the former suit put in issue other matters which are not questioned in this case, and it is impossible to say that at the former trial the verdict may not have been rendered against the plaintiff on account of its failure on some of these. It cannot be said, as matter of law, on the evidence before us, that the former judgment is a bar to this action.

According to the terms of the report, there must be

Judgment for the plaintiff.