Hull v. Newhall

Pierce, J. At the close of the plaintiffs’ case the defendant, requested the presiding judge of the Superior Court, sitting with a jury, to rule that the plaintiffs had not established their cause of action. The judge declined so to do and ordered a verdict for the plaintiffs, it being agreed by the parties that he should report the case for the determination of the Supreme Judicial Court and that if he were right in so ordering a verdict, judgment was to be entered for the plaintiffs in the sum of $294.91, the amount of the verdict; but that, if he were wrong, judgment was to be entered for the defendant. The case is reserved on the pleadings and on the reported facts, which are all that are material. The action is brought by Reginald Mott Hull and Earnest E, Smith, as they are trustees of the Kirkland Trust under an agreement and declaration of trust, dated January 15, 1913, to recover the rent reserved in a written lease. The lease, not under seal, was signed by the defendant and by Forris W. Norris and Reginald Mott Hull, and was delivered to the defendant on August 21, 1913. The defendant thereupon entered into occupation under the lease and retained possession of the apartment until December 30, 1916. On the last named date the defendant wrote the plaintiff Hull “. . .1 regret to say that I am obliged to vacate my pleasant apartment 401 Kirkland Court;” and on the same day paid, in accordance with the lease, in advance the rent for January, 1917, and moved away. The lease was for the term of one year, and contained the — 209 — provision "if said premises are retained by the Lessee beyond the term within specified, this lease shall continue for one year from the expiration of said term, at the option of the Lessors and so on from year to year, unless notice in writing to the contrary is given by the Lessee to the Lessors thirty days at least before the expiration of any such term.” The effect of such provision is the renewal or extension of the lease at the expiration of the term, upon the same terms and conditions, if the lessors assent. Hildreth v. Adams, 229 Mass. 581. Assuming the lease by renewals or extensions was in force, the notice of the intent of the defendant to vacate was ineffectual, and the obligation of the defendant to pay the rent reserved continued until the notice in writing was given in the manner provided in the lease, or until the lease was otherwise determined. No question is raised that the rent was not paid for the months covered by the plaintiffs’ declaration. At the time the lease was executed the property was owned by three trustees under the declaration of trust, who were Forris W. Norris, Reginald Mott Hull and Earnest E. Smithy The plaintiffs are two of the three original trustees and were the sole remaining trustees when the action was brought and the case reserved to this court. The lessors named in the lease are F. W. Norris, R. M. Hull and Earnest E. Smith. The lease nowhere states that the lessors are trustees. It is signed by Reginald Mott Hull and Forris W. Norris. The name Kirkland Trust is not mentioned in the lease. The defendant contends there was no evidence on which the Kirkland Trust could maintain the action. The answer to this claim is that the action is not in the name of the Kirkland Trust, but is in the names of the plaintiffs as they are trustees of the Kirkland Trust under an agreement and declaration of trust. The unincorporated association bearing the descriptive name "Kirkland Trust” had no claim which it could enforce at law by reason of the lease executed by its trustees with the defendant. The sole legal right under the lease against the defendant was in the lessors named in the lease. The fact that they were trustees of the Kirkland Trust was immaterial and proof thereof was not essential to their right to recover. The instrument not being under seal, the plaintiff Earnest E. Smith, who did not sign the lease although named as a lessor, — 210 — could adopt the action of the two trustees who signed it as an act in his behalf and in behalf of the trust estate of which he was the third trustee; and adopting their action, join in an action to enforce the agreement of the defendant in the lease. Huntington v. Knox, 7 Cush. 371, 374. That he did adopt and ratify the action of his co-owners and co-trustees appeared from the fact that he did not dissent from the action of his fellow trustees; that the lessee occupied for more than three years under his lease, paying rent as provided in the lease; and that he now joins in the present action to recoven rent as reserved in the lease. Moreover, no eviction being claimed, the defendant cannot raise the issue of the title of one or all of the lessors under whose lease he had or has had the right to have possession of the premises; because in an action for breach of a contract to pay rent the question of title is not relevant to the issue. Lamson & Goodnow Manuf. Co. v. Russell, 112 Mass. 387. Clark v. Gordon, 121 Mass. 330. Carroll v. St. John’s Society, 125 Mass. 565. What has been said covers the contentions of the defendant as set forth in his brief. We think the verdict for the plaintiff was directed rightly. It follows, in accordance with the terms of the report, that judgment is to be entered on the verdict. So ordered.