Pierce v. Kolikof

Crosby, J. This is an action of contract to recover rent for the use and occupation of three floors of a building. The judge of the Municipal Court of the City of Boston before whom the case was tried found for the plaintiff. The premises in question were leased by the owner, one Sawyer, to the plaintiff on June 14, 1917, by a written lease for the term of one year; and the plaintiff immediately gave to the defendants notice to quit, and thereafter commenced ejectment proceedings against them under R. L. c. 181. There was evidence that the defendants agreed with the plaintiff that they would not contest the plaintiff’s right to recover, but if given until August 1 would vacate the premises. The defendants moved out on July 21, and this action is brought to recover rent from June 14 to July 19. There was also evidence that the “McNeil Corporation”, held a written lease of the entire building for a term of years, and had sublet by a written lease three floors in the building to the defendants, being the same floors described in the lease to the plaintiff; that before the execution of the lease to the plaintiff the owner went to the premises for the purpose of taking possession thereof for breach of the conditions of the lease held by the McNeil Corporation; and that at that time three months’ rent was due from that lessee. The defendants contended that, by an agreement with the owner, the latter agreed to receive as agent for the McNeil Corporation the rent due from the defendants which might accrue; and to protect them from any claim for rent which that corporation might make. It is the contention of the defendants that an action for use and occupation will not lie against them as tenants at sufferance, upon the ground that they denied the plaintiff’s title and claimed to occupy under a title adverse to that of the plaintiff; and that they neither expressly nor impliedly promised to pay rent to the plaintiff. There was evidence from which it could have been found that the defendants, after receiving notice to quit, did not occupy the premises under the lease which they held from the McNeil Corporation and that they did not claim so to occupy; [486] but that after the ejectment proceedings were brought one of the defendants stated to the plaintiff’s attorney that it would be impossible for them to vacate immediately and that they desired further time — until August 1 — which was given. If the trial judge found that the defendants at their request were permitted to remain in possession until August 1, they are liable to pay rent for the time they so remained. R. L. c. 129, § 3. Brown v. Magorty, 156 Mass. 209. Benton v. Williams, 202 Mass. 189. There was also evidence that, before the owner leased to the plaintiff, the defendants attorned to the owner by paying him a month’s rent, and took a receipt on March 16, 1917, in which the owner recited: “I hereby guarantee said company [the defendants] against any claim that McNeil Corporation may make for such rent.” It also appeared that the defendants sent to the owner a check for rent due from June 15,1917, to July 15,1917. Upon all the evidence the court was warranted in finding that the defendants did not claim to occupy under any adverse title, but treated the owner as entitled to possession as against the McNeil Corporation before the lease to the plaintiff was given, and afterwards admitted the right of the plaintiff to possession under his lease and impliedly promised to pay rent for the time which they occupied after receiving notice to quit until they moved out on July 21. Upon such findings the defendants were liable whether the lease to the McNeil Corporation had been legally terminated or not; and the plaintiff’s rights are not affected by the fact that he did not notify the defendants, when he agreed to allow them to remain in possession until August 1, that they would be required to pay rent for the time they so occupied. Kittredge v. Peaslee, 3 Allen, 235. Merrill v. Bullock, 105 Mass. 486. Benton v. Williams, supra. Garin v. Durden Coleman Lumber Co. 229 Mass. 576. The questions put to the defendant Kolilcof in his direct examination were inadmissible and were properly excluded. The evidence offered by the plaintiff, that at the time Sawyer went to take possession of the premises three months’ rent was due from the McNeil Corporation, was competent as tending to show that the owner was entitled to terminate its lease. The admission in evidence of the execution issued in the ejectment proceedings did not harm the defendants. [487] All the requests for rulings not given, except the first, were properly refused because not in accordance with the facts found. The first request that the plaintiff cannot recover, for reasons before stated, was properly refused. The entry must be Order dismissing report affirmed.