Carlisle v. Weiscopf

129 N.E. 375, 237 Mass. 183, 1921 Mass. LEXIS 823

• Court: Massachusetts Supreme Judicial Court
• Decided: January 7, 1921
• Status: Published

Opinion

Braley, J.

The plaintiff contends that, the leasehold being for an indefinite period, an estate is created to be held at the will of the lessee, and, if at the will of the lessee, it also must be at the will of the lessor, and the notice to quit terminated the defendant’s tenancy. See Murray v. Cherrington, 99 Mass. 229; Gardner v. Hazelton, 121 Mass. 494. The term demised is for "two years beginning with the first day of September, A. D., 1912, and this lease shall continue in full force and effect thereafter from year to year, until the Lessee shall on or before the first day of August in any year, give to the Lessor written notice of his intention to terminate this lease, on the first day of the following month, in which case the lease hereby created shall terminate in accordance with such notice.” It is plain that no renewal was contemplated, and unless notice was given the lease continued in force for another year. As was said by Mr. Justice Morton in Dix v. Atkins, 130 Mass. 171, 172, “It is not a mere agreement to give a lease for a term to commence in futuro, but, •upon the failure to give the . . . notice required to terminate the lease, it continued in operation, and was a lease in presentí for the third year,” and each succeeding year thereafter until •such notice had been given. Cook v. Bisbee, 18 Pick. 527. Ainsworth v. Mount Moriah Lodge, 172 Mass. 257.

The intention of the parties to bind themselves to the mutual performance of this covenant being clear, we know of no rule of law which prevents its enforcement. Thayer v. Lapham, 13 Allen, 26. Stone v. St. Louis Stamping Co. 155 Mass. 267. DeFriest v. Bradley, 192 Mass. 346. Leavitt v. Maykel, 203 Mass. 506. The plaintiff, who by purchase has succeeded to the title of the lessor makes no contention that she is not bound by its provisions as modified by the instrument of July 18, 1914, executed by herself and the defendant, which, after providing that the rent reserved “is changed from Twelve hundred dollars per year ... to One thousand dollars per year . . . said reduction to commence September 1, 1914, and payable in monthly instalments in advance,” expressly declares, that “otherwise balance of lease to remain unchanged as to conditions and covenants.” The defendant never having elected to terminate the tenancy, and having paid the rent as it fell due, the plaintiff’s notice to vacate and deliver up the premises is without any legal effect. The present action to obtain possession therefore cannot be maintained, and the defendant is entitled to judgment.

So ordered.