Walker v. Sharpe , 103 Mass. 154 ( 1869 )

Gray, J.

The oral lease from the owners of the land to Sharpe created á tenancy at will only. Gen. Sts. c. 89, § 2. Sharpe’s taking a partner and admitting him into joint occupation with himself did not, in our opinion, amount to an assignment of his interest, or affect his own right in the premises. It has already been decided that, if the notice to quit was duly served on the 1st of August, the tenancy at will was determined and the plaintiff might maintain this action. Walker v. Sharpe, 14 Allen, 43.

The question is now presented whether there was a sufficient service of the notice to quit. The Gen. Sts. c. 90, § 31, provide that “ estates at will may be determined by either party, by three months’” (or of a time equal to the interval between the days of payment of rent, when less than three months) “ notice, in writing for that purpose given to the other party;” but do not prescribe how such notice shall be given; and the statutes as to the service of writs have no application.' The only reported case upon the subject in this Commonwealth is Blish v. Harlow, 15 Gray, 316, in which service on the defendant’s wife at his dwelling-house on the premises, while he was away from the house, but not out of town, was held sufficient. But in England it is well settled that — although the mere leaving of a notice to quit at the defendant’s dwelling-house off the demised premises, without explaining it to any one, is not good — either leaving a notice with the tenant’s wife or servant, explaining its contents, at his dwelling-house off the premises, or delivering a notice on the premises to his wife or agent, or any other person occupying the same jointly with or under him, is a sufficient service. Doe v. Lucas, 5 Esp. 153. Jones v. Marsh, 4 T. R. 464. Doe v. Dunbar, Mood. & Malk. 10. Roe v. Street, 2 Ad. & El. 329. Doe v. Ongley, 10 C. B. 25, 34. Smith v. Clark, 9 Dowl. 202. And upon principle, it would seem that a notice" delivered to an authorized agent upon the premises would be quite as likely to reach the tenant, or to be attended to if he did not receive it in person, as a notice given to one of his family or household at his dwelling-house in his absence. In this case, it appeared that the notice addressed to the defendant Sharpe was delivered upon the day of its date, on the demised premises, to and read by his partner, whom he had left in charge of his business, and while Sharpe and bis wife (who constituted his whole family) were out of the Commonwealth. Under these circumstances, the mode of service adopted, if not the only one practicable for the landlord, was clearly the most beneficial to the tenant, and must be held sufficient. As the jury were instructed otherwise .on this point, the Exceptions must be sustained.