Mahoney v. Corcoran

4 Mass. App. Div. 258

• Court: Massachusetts District Court, Appellate Division
• Decided: July 13, 1939
• Status: Published

Opinion

Jones, P. J.

This is an action of contract to recover damages for the breach of an agreement in writing to take a lease of certain real estate for the term of one year at sixty dollars a month, beginning June 1, 1937.

It is stated in the report that the proposition set out in said application was accepted by both parties, and the action is to recover damages for failure of the defendant to carry out the terms of said agreement; in other words, it is an action for failure to take a lease under the terms stated. Looking at the terms of this agreement, so far as they relate to the payment of rent, the agreement provides as follows :

“Dep (osit) $30.00. Rent $60.00 Rent Starts. June 1, 1937’*

Nowhere does said agreement state the rent to be sixty dollars a month, a week, or otherwise. In the report there is no statement to control the above, other than the statement that

“the plaintiff * * * accepted the proposition set out in said paper” (application).

Further, the Court finds that

‘ ‘ The paper signed by the defendant was an offer which was accepted by the plaintiff to take a written lease of the premises for a year at a rental of $60.00 a month. ’ ’

The only reference to the matter, so far as the evidence is concerned, is as quoted above, “Bent $60.00”.

It therefore appears that we are unable to conclude a decision in the case without some finding as to what the rent, if any, sum, per month was to be, and the evidence so far as admissible and relating thereto; in other words, if it is possible for the Court to find, it should be found whether the rent stipulated to be paid was $60. a month or otherwise.

We are, of course, on the failure of the report to show evidence sustaining the finding of the Court as to the sum the defendant was to pay, unable to conclude as to the proper amount of damages, if any, the defendant is liable for, because the finding is based upon a rental of $60. a month, without any evidence in this respect.

We, therefore, commit the report to the Court of origin for amplification, correction or other amendment, to ascertain the rental, if any, which the defendant may have agreed to pay.