Burke v. Willard

Braley, J. The defendant on January 7, 1921, was in occupation of the premises described in the record under a lease given by the mortgagor, dated July 1, 1920, for the term of one year. But the second mortgage, held by the plaintiff who had the legal title as between the parties, was paramount to the lease. Ewer v. Hobbs, 5 Met. 1, 3. The entry on January 7, 1921, by the plaintiff for the purpose of foreclosure of the mortgage, followed by notice in writing to the defendant, that he had taken possession, and that if the defendant cared to remain as a tenant he must in the future pay rent to him, which the defendant declined to do, [317] terminated the defendant’s leasehold, and no eviction or actual dispossession was necessary. Northampton Paper Mills v. Ames, 8 Met. 1, 7. Elmore v. Symonds, 183 Mass. 321, 323. The plaintiff having entered, the defendant had become a trespasser, and, without resorting to a writ of entry, the present action in tort can be maintained for mesne profits accruing during the period elapsing between January 7, 1921, and the last day of January or the first day of February, 1921, when the defendant voluntarily vacated the premises. Northampton Paper Mills v. Ames, supra. Sargent v. Smith, 12 Gray, 426. Merrill v. Bullock, 105 Mass. 486, 493. The defendant, having obtained judgment in a former action by the plaintiff to recover for use and occupation on the ground that the defendant was a tenant at sufferance, pleads the judgment in bar. But, even if the parties are the same, the judgment in the first action did not determine that the defendant was not a trespasser. Sawyer v. Woodbury, 7 Gray, 499, 502. It is next urged, that, the plaintiff having elected to sue in contract, cannot, when defeated, sue in tort. The doctrine of election of remedies rests upon the assumption, that two or more inconsistent and alternative remedies exist. But the plaintiff, in fact as well as in law, had only one remedy, and his mistaken pursuit of a remedy in contract which did not exist, does not preclude him from resorting to his only remedy of an action in tort. Bradley v. Brigham, 149 Mass. 141. Frisch v. Wells, 200 Mass. 429. Holman v. Updike, 208 Mass. 466, 471, 472. Burke v. Willard, 243 Mass. 547, 551. Clark v. Heath, 101 Maine, 530. We find no variance between the cause of action stated in the writ, and the material allegations of the declaration, and, no reversible error appearing in the rulings at the trial, the order of the Appellate Division dismissing the report is Affirmed.