Tuttle v. Bean

Shaw, C. J. It was argued for the plaintiff, that, by Rev. Sts. c. 60, § 26, he might recover in this process, on a month’s notice to quit, where the defendant held as tenant at will, paying rent, by agreement, at intervals of one month, whether the rent was in arrear or not. Perhaps he might, had his notice to quit been general; but the ease finds that it was a specific notice to quit “for the non-payment of rent.” Upon that ground only can he recover, under this notice. The question was upon the sufficiency of the tender, and waiver of the notice. The notice to quit and the tendei being made on the same day, but it not being stated at what hour of the day they respectively took place, it was left doubtful whether the tender was made before or after the notice. If the tender was made before notice given, and the complainant declined receiving it for the reason stated, then the rent was not in arrear, within the meaning of the statute, the notice was not sustained by the fact, and the plaintiff could not proceed on that ground. If this interview took place after the notice was given, on the same day, and the plaintiff declined taking the money when offered, and told the defendant he need not quit, it was a waiver of the notice, a renewal of the tenancy at will, and the plaintiff could not sustain his complaint on that notice. [278] As the main object of the statute apparently is, to secure and enforce the payment of rent, there is, perhaps, good ground to hold, that if the full amount of rent is tendered at any time before proceedings are commenced, under the landlord and tenant act, it is a good bar to such complaint. Rev. Sts. c. 100, § 14. But the court have not thought it necessary tp proceed on that ground, in the present case; being of opinion that the charge was incorrect, in not submitting to the jury the evidence showing that the plaintiff declined to receive the money, not because it was not tendered when it became due, but on other distinct grounds, if made before the tender; or to prove a waiver of the notice, if made after. Verdict set aside, and a new trial to be had in this court.