Binder v. Gunsenhiser

Braley, J. The clause in the lease upon which the plaintiff [519] relies, that “If the lessor at any time after the expiration of the first five years of this lease desires to sell the land, this lease may be terminated on thirty days’ notice in writing of the lessor’s determination and the payment by the said lessor to the lessee of the sum of $400 as liquidated damages for the termination of said lease, and upon such termination the lessee shall remove any building within the said thirty days and quietly and peaceably yield up the possession of the premises upon said payment of $400,” was held in Gunsenhiser v. Binder, 206 Mass. 434, to be a conditional limitation, and not a covenant. The defendant having given notice of his intention to terminate the lease and tendered the amount stipulated, the leasehold estate expired by limitation, and the right of possession, which he obtained only after resort to summary process under R. L. c. 181, accrued. Gunsenhiser v. Binder, 206 Mass. 434. It is plain that an action for breach of covenant cannot be maintained, although, to avail himself of the privilege of termination, the defendant undoubtedly was required to pay the sum designated as “liquidated damages.” Harrison v. Jordan, 194 Mass. 496. But payment was made conditional upon the plaintiff’s concurrent surrender of the premises within the period, and his refusal to accept the tender and to vacate the premises, with his adverse holding of possession until evicted, prevents any recovery on this ground. Palmer v. Sawyer, 114 Mass. 1, 3. The defendant’s first request, that on all the evidence the plaintiff was not entitled to recover, should have been given. Its refusal requires us to sustain the exceptions, and under St. 1909, c. 236, judgment is to be entered for the defendant. So ordered.