De Witt v. Pierson , 112 Mass. 8 ( 1873 )

Endicott, J.

It is well settled in this Commonwealth, that to constitute an eviction there must be either a physical ouster of the tenant by the landlord, or some act done by him on the premises with the intent of depriving the tenant of the enjoyment and occupation of the whole or part of the same to whicl the tenant yields the possession within a reasonable time, and ii either case the rent is suspended. Royce v. Guggenheim, 10 Mass. 201. There was no physical ouster in this case. The onlj question is whether the evidence offered shows such acts on the part of the plaintiff and the defendant as will constitute an evic tian under the above definition. It does not appear on the evi dence that the plaintiff let the rooms, the use of which is complained of, with the intent to disturb the defendant in his use and occupation. On the contrary, the rooms were so occupied when the defendant’s term began. Nor does it appear that the plaintiff at that time had any knowledge of the alleged use made of the rooms, nor that any proof of such use was at any time given him. Even if an intent to evict may be presumed, as argued by the defendant, from the neglect of the agent to ascertain the facts, when notice was given him, it does not appear when the notice was given, except that it was on three several occasions during the term, which was of eleven weeks’ duration. The evidence also fails to show that the defendant was in fact deprived of the use and occupation of his demised premises ; he continued in actual use and occupation of the whole, during the eleven weeks, and at last yielded to a notice to quit for non-payment of rent. No evidence was offered that would justify the jury in finding that any act was done by the plaintiff with the intent and effect of depriving the defendant of the use and occupation of the whole or part of the demised premises.

The case of Dyett v. Pendleton, 8 Cow. 727, is relied upon by the defendant. That has been called an extreme case; it has been modified, if not overruled, by later decisions in New York; and this court declined to rest its judgment upon it in Royce v. Guggenheim. But that case was decided upon a very different state of facts, and contained many elements, necessary to constitute an eviction, which are wanting in the case at bar. The defendant there, under a lease for years, had been in more than a year, when the plaintiff, who occupied adjoining rooms under the same roof, himself created the disturbances and nuisances complained of, and the defendant within a month abandoned his tenement. The intent to evict, and actual abandonment, might well have been found; but to hold there was an eviction here would be to go far beyond that decision.

There having been no eviction from the premises, but the defendant remaining in full occupation, we do not think there was any question for the jury, as to the beneficial value of the premises to the defendant; and it was immaterial whether he had used due diligence in endeavoring to obtain other lodgings. The cases cited by the defendant do not sustain this position. In one, the tenant was excluded from the occupation of a portion of his demised premises ; in the other, access to the demised premises was closed, and the occupation thereby limited. Cowie v. Goodwin, 9 C. & P. 378. Boston & Worcester Railroad v. Ripley, 13 Allen, 421.

The doctrine of the recoupment of damages, as established in this Commonwealth, does not apply to this case.

Exceptions overruled.