Chalmers v. Smith , 152 Mass. 561 ( 1891 )

Khowltoh, J.

The jury have found that the defendants unreasonably used the plaintiff’s bam by putting into it a weight which was apparently, and in fact, excessive. This was something more,than a mere omission which would constitute permissive waste. It was a positive, unreasonable act, of a kind likely to cause injury to the plaintiffs’ property. Such an act, which results in damage, is voluntary waste on the part of a tenant who is guilty of it.

A tenant at will who commits voluntary waste is liable to his landlord in an action of trespass quare clausum. His act terminates his right as a tenant, and entitles the landlord to treat him as a trespasser in doing it. Starr v. Jackson, 11 Mass. 519. Lienow v. Ritchie, 8 Pick. 235. Daniels v. Pond, 21 Pick. 367. Lothrop v. Thayer, 138 Mass. 466, 473.

A tenant at will as well as a tenant for life or for yéars is under an implied agreement to use the premises in a tenant-like manner, and not by his voluntary act unnecessarily to injure them. While this agreement does not include an obligation on the part of a tenant at will to repair defects resulting from the action of the elements, or from a reasonable use of the premises, or from an unavoidable accident, it creates a liability in an action of contract for a wrongful act in violation of it. 1 Add. Cont. (8th ed.) 383. Holford v. Dunnett, 7 M. & W. 348. United States v. Bostwick, 94 U. S. 53, 66.

The acceptance of rent by the plaintiffs for the full term was not necessarily a waiver of their right to recover damages for a breach of this contract. It was merely evidence for the consideration of the jury upon the question whether there was a waiver. A liability in damages for an act of this kind may well be enforced in an action of contract, notwithstanding that the rent has been fully paid.

Upon the facts which the jury must have found, the action can be maintained on the second count, and the ruling of the presiding justice was therefore correct. Whether the plaintiffs waived their right to maintain an action of trespass quare clausum by permitting the defendants to be in possession of the premises, and accepting rent for a long time after the building fell, or whether the defects in pleading in the first count, treating it as a count in trespass, could be taken advantage of by the defendants’ request for a ruling at the close of the evidence, it is unnecessary to decide.

Judgment for the plaintiffs.