Wentworth Building Corp. v. Bernstein

Order dismissing report affirmed. The Appellate Division dismissed a report in which the judge in an action of contract, begun before the expiration of the term provided for in a written lease, awarded damages to the plaintiff lessor for breach of covenants of the lease. The defendant lessee, after summary process was returned against him following a notice to quit for nonpayment of rent, surrendered the keys and vacated the premises on August 26,1960, paying rent up to and including that day. Damages awarded represent the loss sustained by the lessor during the period the premises were vacant commencing August 27,1960, and ending October 31, 1960, when the lessor rented the premises to another. The lease provided that the lessor could seek indemnification or recover damages. The lease was terminated. G. L. c. 186, § 11. The alternate remedial covenants survived the termination and were enforceable. An election of remedies was, however, required. Gardiner v. Parsons, 224 Mass. 347, 350. The commencement of the instant action was an election to recover damages and was not premature. Cotting v. Hooper, Lewis & Co. Inc. 220 Mass. 273, 276.