Practice, Civil, Appeal. Landlord and Tenant, Surrender, Obligation of tenant as to care of premises.
An order of the Appellate Division of the Municipal Court of the City of Boston dismissing a report by a trial judge will not be reversed on an appeal by the plaintiff merely because the report shows that the judge, having found a certain fact in the plaintiff's favor, granted a request of the defendant for a ruling of law based upon an assumption of fact contrary to his finding, the plaintiff not being harmed by such a ruling.
At the trial of an action for the use and occupation of a two apartment house for three months, it appeared that the defendant had been a tenant at will of the premises for a certain rent payable on the first day of each month for the month preceding, and there was evidence tending to show that on the second day of an October he gave to the plaintiff a notice that he should quit the premises on the first of the next month, that the plaintiff at once informed the defendant that the notice was insufficient and that he would be held for a proper month's notice, that the defendant paid rent to November 1 and then sent the keys to the plaintiff, who three days later wrote to the plaintiff that the keys were not accepted as a surrender but that the defendant would continue to be held for the rent, although the plaintiff would let the premises if possible and would use the keys for that purpose. The next day the plaintiff entered the premises, found them damaged because of acts of omission of the defendant as a tenant, and made repairs which extended to parts of the premises not so damaged. In December the plaintiff let one of the apartments, the tenant occupying on December 26, the rent to be paid beginning January 1. Held, that a finding was warranted that the plaintiff had accepted a surrender of the premises as to the months following November.
While a tenant at will is liable for voluntary waste, he is not liable for permissive waste of the premises let.
CARROLL, J.
The plaintiff received from the defendant, who was her tenant at will at a rental of $35 per month, payable on the first day of each month for the month preceding, a written notice stating his intention to vacate the premises on November 1, 1912. The notice was received on October 2, 1912, and on the same day the plaintiff informed the defendant that the notice was not sufficient to terminate the tenancy and that she would hold him for a proper month's notice. Following the suggestion of the defendant, she placed "To Let" signs on the premises. On November 2 all of the defendant's furniture had been taken from the tenement. He paid rent to November 1, and on or about that day sent the keys of the tenement to the plaintiff. On November 4 she wrote him saying she did not accept the keys as a surrender or termination of the tenancy and would continue to hold him responsible for the rent, but would let the premises if possible, and would use the keys for that purpose. On November 5 the plaintiff entered the premises and found that the kitchen stove, when removed, had been disconnected from the hot water pipes in such a way that the ceilings and walls were soaked with water. She repaired the damaged premises and also made repairs on other parts of the house not injured by water. She rented the second floor apartment in December, 1912, the tenant occupying it December 26, the tenancy beginning January 1. The other apartment was rented beginning February 1, 1913.
The defendant offered evidence tending to show that the plaintiff on October 2 asked permission to place the signs in the house, and his consent to this; that at this time she did not say whether the notice was sufficient or insufficient, and did not say she would require a full month's notice. He also testified that the stove was properly disconnected and the water shut off, and that the damage was caused by water leaking in over the windows, through the roof and from a tank in the third floor.
The plaintiff's first count is for use and occupation during the months of November, December and January. The second count is for damages on account of the breach of the implied covenant to use the premises in a tenantlike and proper manner. The judge of the Municipal Court found for the plaintiff on the first count in the sum of $35, — the rent for the month of November. The plaintiff appealed.
It is not disputed that the notification of October 2 was insufficient in failing to give the plaintiff a full month's notice of the termination of the tenancy, and in awarding judgment for the plaintiff in the sum of $35 (the amount of the rent for the month of November) the judge must have found that the informality in the notice was not waived so as "to release the defendant from his tenancy at the expiration of the rental month of October." Even if the judge was wrong in granting the second request of the defendant, in view of his findings of fact the plaintiff was not harmed by this ruling; neither was she injured by the first ruling given at the request of the defendant. See Boston Supply Co. v. Rubin, 214 Mass. 217, 220; Bailey v. Marden, 193 Mass. 277.
The plaintiff in her seventh request asked, "On all the evidence, there was no acceptance by the plaintiff of a surrender of the premises." The record shows, "The court refused to grant the seventh ruling requested . . . as to the months of December, et sequitur." Considering the conversation of the parties shortly after the notice was received by the plaintiff; her letter of November 2, when the keys were received, in which she said she would use them in securing a tenant "as she understood he had abandoned the premises," although she would continue to hold him for the rent; the circumstances connected with the repairs, — the time they were made, the fact that they extended to parts of the premises not damaged by water; the occupation of the second floor apartment during the month of December, and examining the entire evidence, we think the judge could have found that the plaintiff fully accepted the abandonment and surrender of the estate, that the plaintiff's acts of control and occupation were inconsistent with the relation of landlord and tenant and that the tenancy was finally terminated at the end of November. Talbot v. Whipple, 14 Allen, 177. Amory v. Kannoffsky, 117 Mass. 351. There was no error of law, therefore, in the manner in which the plaintiff's seventh request was dealt with, nor in the modification made to the first and second requests of the plaintiff. Neither is it necessary to consider the third and fourth requests of the defendant, in view of the findings made. Bailey v. Marden, supra. Cohen v. Berkowitz, 215 Mass. 68.
The third, eleventh, twelfth and thirteenth requests of the plaintiff refer to the second count of the declaration and were properly refused. The judge could have found that the damage to the house was not caused by the acts of the defendant nor by the manner in which the pipes were disconnected, and that the defendant was not responsible therefor. Finding such facts as he did, he could not have given the third request. Wyche v. Uebelhoer, 223 Mass. 353.
While a tenant at will impliedly agrees to use the premises in a tenantlike manner, he is not liable for a mere omission or failure to act. He is liable for voluntary, but not for permissive waste. Daniels v. Pond, 21 Pick. 367. Lothrop v. Thayer, 138 Mass. 466, 475. Chalmers v. Smith, 152 Mass. 561. The eleventh, twelfth and thirteenth requests, therefore, were hardly accurate, taking into account this rule of law. But, even if they were true statements, the plaintiff was not prejudiced thereby, because the judge gave the fourteenth request, which correctly stated the law and included all that the plaintiff could fairly ask on this branch of the case. This also disposes of the eighteenth request.
Order dismissing the report affirmed.