Dowd v. Lawlor

Pierce, J. This is an action of contract to recover for the use and occupation of certain premises at 29 Upton Street Boston, from April 20, 1919, until May 22, 1919, by the defendant as tenant at will and as tenant at sufferance of the plaintiff. The case is before this court on the appeal of the defendant from a decision, “Report dismissed,” of the Appellate Division of the Municipal Court of the City of Boston. The report discloses that on March 20, 1919, the plaintiff sold [312] to the defendant certain furniture and good will of a lodging house business at 29 Upton Street, Boston, for $1,000, receiving for the same the sum of $500 in cash and a mortgage for $500. It also discloses that the plaintiff on the same day demised by paroi the premises at 29 Upton Street to the defendant at a rent of $75 per month, payable in advance; that the defendant paid one month’s rent and received the following receipt: “March 20, 1919. Received of Mary Lawlor, seventy five dollars Rent of House No. 29 Upton St., for one month ending April 20, 1919. $75. . . . M. W. Dowd.” On April 20, 1919, the plaintiff demanded of the defendant the payment of a month’s rent, which the defendant refused to pay. On April 25, 1919, the plaintiff served on the defendant the following notice: “Boston, Mass. April 25, 1919. Mrs. Mary Lawlor, Dear Madam: I hereby notify you to quit and deliver up in fourteen days from the date thereof the premises which you now hold as my tenant at 29 Upton St. in the city of Boston. . . . Michael W. Dowd.” The plaintiff has not asked of the defendant any rent since April 20, 1919, when the defendant refused to pay him rent; and he received the keys from the defendant on May 25, 1919, she occupying the premises until May 22 or 23, 1919. Somqtime after April 25 and before April 29, the plaintiff took formal possession of the mortgaged property in said premises, and caused his attorney to write the following letter to the defendant: “April 28, 1919. Mrs. Mary Lawlor, 29 Upton St. Boston, Mass. Dear Madam: As you are aware, Mr. Dowd has started to foreclose the mortgage of personal property at 29 Upton St., which you gave him in March. He has also taken possession of the same, and therefore you have no right to remove the furniture etc. from 29 Upton St. even though he has given you notice to quit the premises. Sincerely Yours, . . . .” The foregoing is stated to be “all the evidence material to the question reported.” The defendant in the Municipal Court presented certain requests for rulings. He now argues those numbered 1, 3 and 4; and we assume waives those numbered 2 and 5. The request for a ruling “That upon all the evidence in the case the finding should be for the defendant,” was properly refused. The facts establish that on April 21, 1919, the defendant by her contract of March 20, 1919, was obligated to pay the plaintiff [313] $75 as advance rent. The premature demand of the rent by the plaintiff on April 20, 1919, and the justifiable refusal of payment by the defendant, had no legal effect on the rights arising under the contract. The plaintiff was not required to demand the payment of rent at the time it became due and payable as a condition to his right to sue for its recovery. Nor was he required to make such demand as a condition to his right to determine the tenancy at will upon the failure, neglect or refusal of the defendant to pay the rent when it fell due. R. L. c. 129, § 12. G. L. c. 186, § 12. Kimball v. Rowland, 6 Gray, 224. Hodgkins v. Price, 137 Mass. 13, 18. The finding of the Municipal Court that the plaintiff did not evict the defendant from the premises is supported as a finding of fact and as a ruling of law by the reported facts, which show that the defendant had the use and actual possession of the premises and mortgaged furniture until she surrendered the premises and delivered the keys to the plaintiff on May 25, 1919. It follows that the requests for rulings numbered 3 and 4 were refused rightly, and that the order "Report dismissed” must be affirmed. So ordered.