Colburn v. Morrill

117 Mass. 262, 1875 Mass. LEXIS 208

Opinion

Endicott, J.

The evidence of the plaintiff tended to prove that he made an oral lease of three rooms to the defendant for an entire rent. The defendant offered to prove that in addition to the three rooms he also hired an attic room. As the case is presented it is immaterial whether the attic room was included in the agreement, as both parties agree that the front room, from which the defendant says he was evicted, was part of the premises let to the defendant. There was evidence offered by the defendant from which the jury might have found that he was evicted from the front room, which was part of the premises, and from the attic room, which he contends was also a part of the same.

It was long since settled in England that the eviction of a tenant by a landlord from a part of the demised premises suspends the entire rent so long as the eviction continues. Salmon v. Smith, 1 Saund. 204, n. 2. Morrison v. Chadwick, 7 C. B. 266, 283. Upton v. Townend, 17 C. B. 30. The question was left open in Shumway v. Collins, 6 Gray, 227; and in Fuller v. Ruby, 10 Gray, 285, the court declined to express an opinion on the point, it not being properly before them. But in Leishman v. White, 1 Allen, 489, it was held that a tenant evicted by a landlord from part of the demised premises was not liable for rent or for use and occupation of the residue. The landlord cannot “ so apportion his own wrong as to enforce the lessee to pay anything for the residue.” Hodgkins v. Robson, 1 Vent. 276, 277. Royce v. Guggenheim, 106 Mass. 201. Christopher v. Austin, 11 N. Y. 216. The fact that a tenant has no written lease does not affect his rights in this respect.

We are of opinion, therefore, that the learned judge should have submitted the case to the jury upon the question whether the defendant was evicted by the plaintiff from a portion of the premises which he occupied under his agreement.

Exceptions sustained.