Kimball v. Rowland

Shaw, C. J. 1. At the common law, where the object is to enforce a forfeiture of a subsisting lease, for breach of condition in the nonpayment of rent, the rule is no doubt strict, requiring a demand of payment by the landlord, at the day. But the direct object of the Rev. Sts. c. 60, § 26, seems to be, not to enforce a forfeiture, but to enable a landlord to determine a tenancy at will, which, at the common law, was determinable at the will of either party. The words of the statute, after other modes provided for other cases, are: “And in all cases of neglect or refusal to pay the rent due on a lease at will, fourteen days’ notice to quit shall be sufficient.” When the words “ neglect ” and “ refusal ” are used in reference to the payment of money, we understand the meaning to be, that refusal is a failure to pay money when demanded; neglect is the failure to pay money which the party is bound to pay without demand. The difference in the meaning of these terms in Merrifield v. Cobleigh, 4 Cush. 178, arose from the difference of the subject matter. There it was held that a grantee was not bound to rebuild a decayed fence, for the benefit of the grantor, without notice or request from the grantor [226] and therefore there was no such neglect as would work a forfeiture, within the terms of the condition. But in the present case, the lessee at will was bound to pay his rent at the day, without demand ; his failure to do so was a neglect to pay the rent due ; and this gave the plaintiff a right to terminate the tenancy at will by fourteen days’ notice ; and notice was given on that ground. His right to the possession, and to the aid of this summary process, was fixed by that notice. 2. And the receipt of the money due for rent, after such notice given, will not necessarily operate as a waiver of that right, if the landlord, at the time of receiving such rent, gives notice that he does not thereby intend to waive his right to terminate his lease, or revoke his notice. If the landlord received such rent without protest, or notice of any sort, it might be inferred, from his silent acceptance of the rent in arrear, that, the cause of his notice being removed, it was his intent to revoke it, and waive his right to terminate his lease, as in Tuttle v. Bean, 13 Met. 275, and Collins v. Canty, 6 Cush. 415. But it is a presumption that may be rebutted, and the mere acceptance of rent, under a protest that he does not thereby waive, will not raise such presumption; for the money is his due, and he has a right to receive it, without barring his right to terminate the tenancy at will, which is the direct object of the suit. In Tuttle v. Bean, 13 Met. 278, an intimation was thrown out that perhaps a tender of the arrears, before proceedings commenced, might be a bar. But it was stated as an unsettled question, and the case was not decided on that ground. Here the payment was made after the notice given, but before other proceedings were commenced, and the payment was received by the plaintiff under a protest, not waiving his right. Judgment for the plaintiff.