Landlord and Tenant. Frauds, Statute of. Where a tenant at will, paying monthly rent on the first day of each month, has received from his landlord a notice in writing to quit on the first day of the second month after the date of the notice, which under R.L.c. 129, § 12, is sufficient to terminate the tenancy, it is doubtful whether subsequent negotiations between the parties for the making of a lease in writing for a term to begin on the day of the termination of the tenancy at will, which before that day are broken off without the making of a lease, no occupancy after that day except under the lease being discussed, can constitute a waiver by the landlord of his rights under the notice to quit.
Where a tenancy at will has been terminated by the landlord giving a lease in writing to a third person to take effect upon a day of which the tenant was given reasonable notice, the provisions of R.L.c. 129, § 12, in regard to the termination of a tenancy at will by a notice to quit are immaterial, the landlord having resorted to a different method of termination.
In an action for the alleged breach of a contract to give the plaintiff a lease in writing of certain premises, the defendant set up the statute of frauds. The plaintiff introduced in evidence as a memorandum of the contract an instrument of lease which, with a duplicate, had been sent by the defendant to the plaintiff for his signature, and was left to be signed before a certain hour or not at all. The instrument had on its back an indorsement that it was a lease from the defendant to the plaintiff and that it had been brought "at about 2:30 P.M. with instructions to sign before 3 P.M. or not good." At three o'clock the agent of the defendant called for the lease, and, on learning that it had not been signed, demanded its return. The plaintiff gave him one of the duplicates, but could not give him the other, which was the one put in evidence, because he had sent it to be examined. The next day the plaintiff signed the duplicate of the lease which he had retained and asked the defendant to sign it. The defendant refused to do so. Held, that the paper was prepared and used, not as a memorandum, but as a draft of a lease which never was executed as such by the defendant, and that it never was delivered to the plaintiff either as a lease or as a memorandum, and therefore could not satisfy the statute.
RUGG, J.
The plaintiffs were tenants at will of the defendant, paying monthly rent on the first day of each month. On May 9, 1905, they received from the defendant written notice to quit and deliver up the premises on July 1 following. This was sufficient to terminate the tenancy. R.L.c. 129, § 12. There was some oral discussion later in May between the plaintiffs and a representative of the defendant as to a written lease, the term of which was to begin on July 1. These negotiations never ripened into a binding contract, and were broken off by the defendant on May 31, and no written lease was executed, and there was no evidence that occupancy by the plaintiffs after July 1 was spoken of, except in connection with the written lease. It is doubtful whether these facts in any aspect constitute a waiver of the rights of the defendant under its notice to quit. But the tenancy of the plaintiffs was terminated, and they became tenants at sufferance by virtue of a lease, given by the defendant to a lessee other than the plaintiffs, to take effect on July 1, of which the plaintiffs were given due notice in writing on June 6. Pratt v. Farrar, 10 Allen, 519. The plaintiffs have no right of action under these circumstances against the landlord. They cannot maintain trespass quare clausum fregit because they have neither title nor lawful right to possession against either the landlord or the new tenant. Low v. Elwell, 121 Mass. 309. The plaintiffs contend that, notwithstanding these familiar principles, the landlord must give them the notice required by R.L.c. 129, § 12, or be liable to them in trespass, if he fails to do so. One conclusive answer to this argument is that this statute does not point out the only method of terminating a tenancy at will. It does not purport to be exclusive of all other remedies. The tenancy at will of the plaintiffs was terminated in another legal way, and they were converted into tenants at sufferance, and the defendant is under no liability to them. Lash v. Ames, 171 Mass. 487.
The plaintiffs seek to recover for breach of an alleged contract to give them a written lease. There was no evidence of a memorandum in writing as to this contract sufficient to satisfy the statute of frauds. R.L.c. 74, § 1. An unsigned lease, complete in all respects save the signatures of the parties, was handed by an agent of the defendant to one of the plaintiffs, with the oral stipulation that it must be signed by three o'clock in the afternoon, or a lease would be given to some one else. There had been preliminary talk before this time, but some of the essential elements of a lease had not been even referred to, for nothing had been said as to the rent to be reserved. The agent for the defendant called for the leases at three o'clock in the afternoon, ascertained that they were not signed, and took away the only one which the plaintiffs could then give him. Plainly there was no delivery of any writing under the statute. The papers were prepared and used, not as a memorandum but as a contract, and were never executed as such. Hazard v. Day, 14 Allen, 487. Sanborn v. Sanborn, 7 Gray, 142. Parker v. Parker, 1 Gray, 409.
Exceptions overruled.