DE WITT v. PIERSON.

SUPREME JUDICIAL COURT OF MASSACHUSETTS, 1873.

[Reported, 112 Mass. 8.]

CONTRACT to recover eleven weeks rent for the use and occupation of a tenement, hired of the plaintiff by the defendant, and by him actually occupied from the second of March, 1870, to May 18th, 1870, at six dollars a week.

At the trial in the Superior Court before Scudder, J., there was no denial by the defendant that he occupied the premises during all the time sued for, nor of the correctness of the plaintiff's account, except as to the charge of rent for the first two weeks of the term, which he claimed had been paid, and which was allowed by the jury in their verdict. For the defence, it was shown that the premises, for the use of which rent was claimed, were two rooms situated in a house on Harrison Avenue, in the city of Boston; that during the entire portion of the term declared for, other rooms in the same house directly beneath those occupied by the defendant were leased by the plaintiff to one Mrs. Fletcher, whom one of the witnesses for the defence, formerly a policeman, testified was a person of notoriously bad character; that this woman introduced into the apartments hired by her two other women as lodgers, whom the same witness testified were notoriously of lewd character. One of the witnesses for the defence thought the apartments let to this person were used for the purpose of prostitution, and he testified that, on two occasions, drunken men were seen in their rooms; that the policeman on duty in that section of the city, on several occasions, drove away a crowd of boys who were attracted to the spot by the noise and riot proceeding from the rooms occupied by these women; and the defendant testified that the disturbance caused by the singing of bawdy songs, and the loud talking of the women and their visitors, and the frequent ringing of the door-bell, were a constant source of annoyance to the family of the defendant, which consisted of himself and his wife; that notice of the fact that the defendant was annoyed and disturbed by these things, and of the character of the house and of these women, was given on three several occasions during the term, to the plaintiff's agent, who promised to attend to it; that the defendant, whenever asked to pay his rent, refused to do so, unless these women were removed from the house; that the plaintiff took no notice of the request of the defendant, except to promise by his agent to get the women out, if it could be proved to him that they were of bad character, which the defendant undertook to do, if the agent would call at the house any evening, and named an evening; but the agent replied he had other business to attend to. No other notice than that

above mentioned was given to the plaintiff of these facts, but the policeman testified he made four attempts to find the plaintiff to inform him of the character of the house, and left word with a brother of the plaintiff that he wished to see the plaintiff in regard to it. The plaintiff' testified he never received the message. Notice to quit was served by the plaintiff on the defendant, and the defendant left the premises two or three days before the notice expired, having, as he alleged, used all due diligence from the time he first discovered the character of the other occupants, to procure other suitable lodgings. It was in evidence that the business of the plaintiff in matters pertaining to his real estate was conducted by an agent.

The presiding judge ruled that the above facts, though proved, constituted no defence to the action. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.

J. Willard and C. H. Hurd, for the defendant.

C. II. Drew, for the plaintiff.

case.

ENDICOTT, J. It is well settled in this Commonwealth, that to constitute an eviction there must be either a physical ouster of the tenant by the landlord, or some act done by him on the premises with the intent of depriving the tenant of the enjoyment and occupation of the whole or part of the same to which the tenant yields the possession within a reasonable time, and in either case the rent is suspended. Royce v. Guggenheim, 106 Mass. 201. There was no physical ouster in this The only question is whether the evidence offered shows such acts on the part of the plaintiff and the defendant as will constitute an eviction under the above definition. It does not appear on the evidence that the plaintiff let the rooms, the use of which is complained of, with the intent to disturb the defendant in his use and occupation. On the contrary, the rooms were so occupied when the defendant's term began. Nor does it appear that the plaintiff at that time had any knowledge of the alleged use made of the rooms, nor that any proof of such use was at any time given him. Even if an intent to evict may be presumed, as argued by the defendant, from the neglect of the agent to ascertain the facts, when notice was given him, it does not appear when the notice was given, except that it was on three several occasions during the term, which was of eleven weeks' duration. The evidence also fails to show that the defendant was in fact deprived of the use and occupation of his demised premises; he continued in actual use and occupation of the whole, during the eleven weeks, and at last yielded to a notice to quit for non-payment of rent. No evidence was offered that would justify the jury in finding that any act was done by the plaintiff with the intent and effect of depriving the defendant of the use and occupation of the whole or part of the demised premises.

The case of Dyett v. Pendleton, 8 Cow. 727, is relied upon by the defendant. That has been called an extreme case; it has been modified, if not overruled, by later decisions in New York; and this court declined to rest its judgment upon it in Royce v. Guggenheim. But

that case was decided upon a very different state of facts, and contained many elements, necessary to constitute an eviction, which are wanting in the case at bar. The defendant there, under a lease for years, had been in more than a year, when the plaintiff, who occupied adjoining rooms under the same roof, himself created the disturbances and nuisances complained of, and the defendant within a month abandoned his tenement. The intent to evict, and actual abandonment, might well have been found; but to hold there was an eviction here, would be to go far beyond that decision.

There having been no eviction from the premises, but the defendant remaining in full occupation, we do not think there was any question for the jury, as to the beneficial value of the premises to the defendant; and it was immaterial whether he had used due diligence in endeavoring to obtain other lodgings. The cases cited by the defendant do not sustain this position. In one, the tenant was excluded from the occupation of a portion of his demised premises; in the other, access to the demised premises was closed, and the occupation thereby limited. Cowie v. Goodwin, 9 C. & P. 378. Boston & Worcester Railroad v. Ripley, 13 Allen, 421.

The doctrine of the recoupment of damages, as established in this Commonwealth, does not apply to this case.

Exceptions overruled.1

GRABENHORST v. NICODEMUS.

COURT OF APPEALS OF MARYLAND. 1875.

[Reported 42 Md. 236.]

APPEAL from the Court of Common Pleas.

The appellees sued the appellant in the Circuit Court for Baltimore county, to recover the sum of $1,000, as the consideration for the privi lege given to him of purchasing a certain distillery and premises, within a time specified; and also the sum of $125 per month rent for the same property. The case, on the suggestion and affidavit of the defendant, was removed to the Court of Common Pleas, where his pleas were filed.

First Exception. The plaintiffs to maintain the issue on their part offered in evidence a lease dated the 15th of February, 1871, whereby they leased to the defendant the distillery and premises described in a deed particularly referred to, for the term of one year, beginning on the day of the date of the lease and ending on the 14th of February, 1872, at the rent of $125 per month, payable monthly on the first day of each month. It was agreed and understood that all repairs and improvements which the lessee might require, he should do at his own

1 See accord. Gilhooley v. Washington, 4 Comst. 217.

expense, and that all repairs, improvements and fixtures and machinery which he should introduce into or put upon the distillery or premises should revert to, and become the property of, the lessors upon the termination of the lease, without cost to them.

The plaintiffs then proved by Charles G. Heim that the defendant entered into possession of the leased premises and remained in possession during the year mentioned in the lease, and had paid no rent therefor. They also offered in evidence an agreement between themselves and the defendant, dated the 15th of February, 1871, the execution of which was admitted, whereby the plaintiffs agreed that the defendant might during the year for which the property was leased, and not afterwards, purchase the same for $5,000, provided the title was satisfactory; and the defendant agreed and bound himself to pay to the plaintiffs for the privilege, the sum of $1,000, at the expiration of the year, if he did not purchase the property for the sum of $5,000. If, however, he should complete the purchase within the year, then the $1,000 was to be considered as included in the said purchase-money of $5,000, and should not be required of him. It was also agreed, that if the defendant should complete the purchase, the rent should cease from the day when the sale should be completed, and the purchase-money fully settled.

The plaintiffs further proved by the witness Heim that the $1,000 mentioned in the agreement had not been paid. On cross-examination this witness proved that the plaintiffs received $5,000 from Mr. John W. Garrett for the property mentioned in the lease. On re-examination the witness proved that the money was paid on or about the 1st of March, 1873. The plaintiffs then offered in evidence an agreement dated the 16th of January, 1873, signed by themselves, certifying that they had sold the property to the defendant for $5,000, provided he paid the sum of $2,000 on or before the 1st of March, 1873, and gave satisfactory security for the balance. There was an indorsement on this paper extending the time of payment to the 7th of March, 1873.

The defendant then to maintain the issue on his part, offered in evidence an agreement made on the 16th of January, 1873, to sell to the defendant the distillery property, and that the plaintiffs did not waive any right to the amount of rent and privilege claimed by them to be due by the defendant under a prior agreement. The defendant then proved by himself that he sold the distillery property to Mr. Garrett for $5,000, but did not receive the money, it was paid to the plaintiff's; he then offered to prove also by himself, subject to exception, that after the time named in the agreement, which gave him the privilege of purchasing the property, had expired, he went to see the plaintiffs and they agreed to extend the time for the purchase of the property by the witness, they were anxious to sell the property, - and on the last of July, 1873, they told him they would sell the property to him under the agreement. The plaintiff's objected to this evidence, and the court (Garey, J.) sustained the objection; the defendant excepted.

Second Exception. The defendant then offered to prove by himself that at the time when the lease offered in evidence in this cause was executed, the distillery therein mentioned was not in running order; that he promised to repair it, and spent two or three thousand dollars in the repairing thereof; that after such repairs were made he was ready to run the distillery — the plaintiffs refused to sign the consent as owners of the fee which is required by the Internal Revenue Laws of the United States, before the defendant could procure the necessary papers to run the same as a distillery, and in consequence of such refusal be was prevented from running the same as a distillery, and the property therefore continued idle; that the defendant several times applied to the plaintiffs to sign such consent, but they refused so to do.

And also offered to prove by Robert G. King, that he is one of the Assistant Assessors of Internal Revenue for the District, in which is situated the distillery, formerly occupied by the defendant; that sometime in the year 1871 or 1872, the defendant applied to the assessor to furnish him with such papers as were required by law, to allow him to run the aforesaid distillery; that among such papers, was one, by which Jeremiah Nicodemus and others, the owners of the fee, were required to give their consent to the use of the property for distilling purposes, which was never executed by them, and thereupon the necessary papers were never delivered to the defendant.

To the evidence so offered by the defendant, the plaintiffs objected, and the court sustained the objection. The defendant thereupon excepted.

Third Exception. The plaintiff's offered the following prayers: 1. If the jury shall find the execution by the plaintiffs and defendant of the lease, dated 15th of February, 1871, offered in evidence, and that the defendant entered into possession under the same, and that no part of the rent mentioned in said lease has been paid, then the plaintiffs are entitled to recover the rent therein stipulated, together with interest upon each sum of $125, from the time when it was payable.

2. If the jury find the execution by the plaintiffs and defendant of the agreement, dated the 15th of February, 1871, and that the defendant did not purchase the property therein mentioned at any time during the period of one year thereafter, and that he has not paid the sum of one thousand dollars, then the plaintiffs are entitled to recover the said sum of $1,000, together with interest thereon from the 16th of February, 1872.

The defendant offered six prayers, which need not be reported. The court granted the prayers of the plaintiffs, and refused those of the defendant. To this ruling of the court the defendant excepted, and the verdict and judgment being for the plaintiffs, he appealed.

The cause was argued before BARTOL, C. J., STEWART, GRASON, MILLER, and ALVEY, JJ.

Fred. C. Cook and Samuel Snowden, for the appellant.

D. S. Briscoe and William A. Fisher, for the appellees.