Whicher v. Cottrell

43 N.E. 114, 165 Mass. 351, 1896 Mass. LEXIS 263

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1896
• Status: Published

Opinion

Barker, J.

Considered as a notice intended to terminate the tenancy, the original notice did not comply with the provisions of the statute. Pub. Sts. c. 121, § 12. But if the plaintiff knew that the notice was intended to terminate the tenancy, he might so act as to preclude himself from objecting that the notice was insufficient. Boynton v. Bodwell, 113 Mass. 531, 537. We are of opinion, however, that the evidence would not justify a finding for the defendant. Assuming that on May 1, 1893, the plaintiff knew from reading the notice that the defendant intended to terminate his tenancy, the plaintiff upon that occasion did nothing to show that he waived the defects of the notice. Thereafter he neither saw nor had any communication from or with the defendant until December 1, 1893. During the interval he continued to make out bills against the defendant monthly for the rent, and to attempt to collect them at the store as usual, going there often and asking if they had no money for him, and receiving and crediting to the defendant whatever payments he received there. These facts could not justify the defendant in assuming that the plaintiff had released him, or lead him reasonably and properly to believe that the plaintiff had waived the defects of the notice. On the contrary, the plaintiff’s conduct was an assertion of the defendant’s tenancy by a consistent attempt to collect the rent as due from him.

The evidence did not justify a finding that the defendant’s tenancy was terminated by transfer of the tenancy and possession with the plaintiff’s knowledge and acquiescence. Although the plaintiff received payments from the defendant’s vendee, the plaintiff did not treat the vendee as his tenant, but continued to claim that the defendant was the tenant, and made out the bills for rent against him.

Judgment for the plaintiff in each case.