President of the Bay State Bank v. Kiley

This case was decided in June 1860. Dewey, J. 1. We think the instructions of the court in reference to the form of the notice in its direction to “ Messrs. White & Kimball ” were correct. If White was the agent of the bank in reference to the leasing of the shop, and this notice was in fact given to him as such agent, and was so received and so understood by him, the form of its direction would not render it invalid. There was evidence in the case proper to be submitted to the jury upon this point. 2. But upon the other point the court are of opinion that the case did not warrant a verdict for the defendant. The notice given on the 2d of May was too late to save the lessee from liability for rent for that month. The presiding judge properly ruled that if the monthly term began on the first day of the month, it would end on the last, and so the notice on the face of it was bad. But the judge submitted to the jury the question of a waiver by the plaintiffs of this defect in the notice, against the objection of the plaintiffs that there was no sufficient evidence to authorize the jury to find such waiver. The position taken by the plaintiff seems to us to have been correct. The defendant could not say that he had been prejudiced in this matter by the subsequent acts of White, or by his withholding any objection to the notice on this account%s it was then too late to correct the mistake, or obviate the objection by a new notice.//The defendant had omitted nothing, and placed himself in no worse position, by reason of any acts relied upon [495] as a waiver of the notice being given too late. This defect in the notice was not one to be cured by any finding of the jury that the agent well understood the purpose of the notice, for, if understood, it was a purpose that the defendant could not, by a notice drawn up in any form, legally effect on the second day of the monthly term of the lease. Exceptions sustained.