Landlord and Tenant. Waiver. Evidence, Presumptions and burden of proof. In an action for rent against an alleged tenant at will, where it appears that the defendant occupying the premises after the expiration of a lease became a tenant at will, but, supposing himself to be only a tenant at sufferance, gave no notice under R.L.c. 129, § 12, to terminate the tenancy, and the defendant relies on the acts of the parties as constituting a surrender of the premises by him and their acceptance by the plaintiff, the burden is on the defendant to establish a waiver by the plaintiff of the notice required to terminate the tenancy at will.
In an action for rent against an alleged tenant at will, it appeared that the defendant after the expiration of a lease of the premises from the plaintiff to him, continued to occupy the premises, making monthly payments of rent at the rate prescribed by the lease which were accepted by the plaintiff, that the plaintiff thought that the defendant had become bound by an extension of the lease under its terms and the defendant thought that he was a mere tenant at sufferance. While this state of affairs existed the defendant ceased to occupy the premises and gave the key to the plaintiff with a letter informing him that the defendant was moving out. The plaintiff replied by a letter informing the defendant that the plaintiff looked to him to pay the rent for the extended term mentioned in the lease, saying, "If you wish us to find a tenant who will take the premises off your hands we will try to do this for you, but we do not accept from you any surrender of the premises, and we shall look to you for our rent in any event. The key which you have sent us we hold subject to your order, and the premises are at your disposal." Later an agreement in writing was signed by the defendant and was delivered by him to the plaintiff, in which, after referring to the plaintiff as the lessor and to the defendant as the lessee, the defendant agreed that the occupation of the premises by any one other than the lessee should not be considered in any way as affecting the question of any surrender of the lessee's interest in the lease and should not be construed in any way by the lessee as a giving up or surrender of any rights which the lessor might have under the lease against the lessee. Relying on this agreement, the plaintiff took possession of the premises and let them to a tenant for two months, after which they were vacant until by a decision of this court the parties learned that the lease had not been extended but that the defendant by occupying the premises after the expiration of the lease and paying a monthly rent in accordance with its provisions had become a tenant at will of the plaintiff. Thereupon the defendant, reserving all rights, gave a notice under R.L.c. 129, § 12, to terminate any tenancy at will that might exist. The plaintiff sued for the rent of the intervening months, crediting the two months' rent received by him from the tenant mentioned. The defendant contended that the tenancy at will was terminated by his surrender of the premises and their acceptance by the plaintiff. Held, that the refusal of the plaintiff to accept a surrender of the premises was not deprived of its effect by the plaintiff's mistaken belief that the defendant was held under an extension of the lease, and that the plaintiff by taking possession of the premises in reliance upon the defendant's agreement and by receiving the two months' rent which he credited to the defendant did not waive any rights against the defendant; and consequently that the defendant was liable to pay rent as a tenant at will until such tenancy was terminated by a notice under R.L.c. 129, § 12.
DeCOURCY, J.
The lease to the defendants expired on May 31, 1908. They continued to occupy the premises until January 28, 1909, paying the rent monthly in advance. Acting under the impression that they were only tenants at sufferance after the termination of the lease, they gave no written notice to end their tenancy under R.L.c. 129, § 12, that affects the period covered by the declaration. It was pointed out in the earlier case between the same parties that the defendants became tenants at will. As such they remained liable for rent unless the required statutory notice was waived by the landlord. Taylor v. Tuson, 172 Mass. 145. Leavitt v. Maykel, 203 Mass. 506.
The defendants contend that the tenancy was terminated by their surrender of the premises and the acts of the plaintiffs operating as an acceptance. The burden of establishing a waiver of the notice is upon the tenant. Whitney v. Gordon, 1 Cush. 266. We are unable to find that the landlord, expressly or by implication, accepted the surrender of the estate. The plaintiffs, in their letter of February 2, 1909, expressly stated that they did not accept any surrender and that the premises were at the disposal of the defendants. This claim is not deprived of its effect by the landlords' mistaken opinion that the holding over by the tenants constituted a renewal of the lease. Nor did the occupancy of the store by Seiman during June and July operate to put an end to the defendants' estate under the facts in this case. In their letter of February 2, the plaintiffs expressly stated: "If you wish us to find a tenant who will take the premises off your hands we will try to do this for you, but we do not accept from you any surrender of the premises, and we shall look to you for our rent in any event." They made no attempt to rent the store until the defendants gave them the agreement of March 20, 1909, when the earlier case was pending. This agreement indicates that the plaintiffs did not intend to waive their legal claim against the defendants by taking possession. And the defendants were credited with the rent received from Seiman.
We are constrained to hold that the tenancy at will was not terminated and that the defendants are liable for the rent declared on. The rulings requested were rightly refused. Talbot v. Whipple, 14 Allen, 177. Fifty Associates v. Grace, 125 Mass. 161, 163. Whicher v. Cottrell, 165 Mass. 351.
Exceptions overruled.