322 Mass. 211 | Mass. | 1948
In this action of summary process, which was heard on a case stated, the judge in effect ordered judgment for the plaintiffs by finding “for the plaintiff[s] for possession.” The defendant appealed. G. L. (Ter. Ed.) c. 231, § 96.
The facts material to the questions raised by this appeal are these: The plaintiffs are, and for a considerable period have been, the owners of a parcel of “nonresidential commercial real estate” located on the corner of Maple and Auburn streets in Chelsea. The defendant had occupied these premises under a lease from the plaintiffs which expired on April 1, 1945. Thereafter, the defendant entered into an oral agreement with the plaintiffs whereby it became a tenant at will at a monthly rental of $300 payable in advance on the first day of each month, and the defendant paid this sum to the plaintiffs every month “when and as due until October 1, 1946.” On the first day of the months
On December 7, 1946, the plaintiffs under G. L. (Ter. Ed.) c. 186, § 12, as appearing in St. 1946, c. 202, served upon the defendant a fourteen days’ notice to quit the premises for nonpayment of rent. On December 27, 1946, an action of summary process to recover possession of the premises was begun by the plaintiffs. Four days later the defendant brought a bill in equity which, among other things, sought to enjoin the plaintiffs from prosecuting their actions at law.
On January 23, 1947, before the action of summary process was tried, the parties entered into an agreement to settle their differences, pursuant to which the actions at law and the suit in equity were dismissed without prejudice and the defendant paid the sum of $1,200 to the plaintiffs.
The judge rightly ordered judgment for the plaintiffs.
The defendant at the arguments in this court conceded that if the original tenancy at will was in existence on January 27, 1947, the notice which was sent and received on that date was sufficient to terminate the tenancy, and that the notice was not waived by the subsequent acceptance of the February rent by the plaintiffs. See Jones v. Webb, 320 Mass. 702, 705-706. The defendant’s position is, as we understand it, that the fourteen days’ notice to quit served on December 7, 1946, brought the tenancy at will to an end and thereafter and on January 27, 1947, the defendant was a tenant at sufferance; that the notice of January 27 was ineffective since it was merely an attempt to terminate a-tenancy at will which never existed; that on February 1, 1947, a new tenancy at will came into existence when the plaintiffs accepted the rent for February tendered by the defendant; and that this new tenancy has never been terminated in accordance with law.
The short answer to this argument is that the premise on which it rests is unsound. The original tenancy at will was not terminated by the notice of December 7. By G. L. (Ter. Ed.) c. 186, § 12, as appearing in St. 1946, c. 202, it is provided that “In case of neglect or refusal to pay the rent due from a tenant at will, fourteen days’ notice to quit, given in writing by the landlord to the tenant, shall be sufficient to determine the tenancy” (emphasis supplied). A tenancy at will may be terminated by the fourteen days’ notice to quit mentioned in § 12 if, and only if, there has been a “neglect or refusal to pay the rent due.” Where a
Order for judgment affirmed.
The plaintiffs gave the defendant a receipt which read as follows: “January 23, 1947 Received of ICrasnow Wool Stock Co. Twelve hundred and no 100 Dollars Re: As rental of 210 Maple Street, Chelsea, for the months of October, November and December, 1946, and January, 1947. $1200. Eli Yoffe and Israel Yoffe By their attorney, Jacob Levy.”