Conroy v. Toomay , 234 Mass. 384 ( 1920 )

Crosby, J.

This is an action to recover for rent of a suite in an apartment house according to the terms of a written lease. It was agreed that the defendant had paid all rent due up to and including the month of October, 1918, but that the sum alleged to be due on November 1, 1918, had not been paid. The lease was “for the term of two (2) years from the first day of September, in the year nineteen hundred and sixteen, until the last day of August, in the year nineteen hundred and eighteen (if then terminated as hereinafter provided), and thereafter from year to year, until one of the parties hereto shall, on or before the first day of July in any year, give to the other party written notice of his intention to terminate this lease on the last day of the following August, in which case the term hereby created shall terminate in accordance with such notice.”

At the trial the defendant offered evidence to show that the apartment house was heated by a steam heating apparatus in the cellar, under the exclusive control of the lessor; “that during the fall and winter and spring of 1918” the landlord failed to provide the defendant with an adequate supply of heat and hot water to enable him and his family to live in safety in the apartment, and for this reason it was unfit for occupation; that during the period referred to the defendant complained to the plaintiff about the failure to supply heat and the plaintiff “continuously promised to do so;” that prior to the first day of July, 1918, and subsequent to the execution and delivery of the lease, the plaintiff orally agreed with the defendant that if the latter would not give a written notice required to terminate the lease on the last day of August, 1918, and would continue to occupy the apartment, she would furnish the apartment with the proper and necessary supply of heat and hot water, and, in the event of her failure to do so would not hold him liable under the terms of the lease; that the defendant, relying on the agreement, did not give notice to terminate the lease but continued to occupy the premises until a few days before October 30, 1918; that on October 21, 1918, he notified the plaintiff in writing that it was impossible for him and his family to live there and he would move out on or about November 1, 1918; and that he did so move before that date. The defendant further offered to show that during the months of September and October of that year the apartment was unfit and unsafe for occupancy because of the failure of the plaintiff to furnish sufficient heat and hot water. The trial judge excluded the evidence and directed the jury to return a verdict for the plaintiff for the full amount of her demand.

We are of opinion that the evidence was plainly admissible; if the oral agreement was proved and a breach thereof was shown it was a valid defence to the action. The agreement was founded upon a good consideration, and was not open to the objection that it was within the statute of frauds. It has long been settled “that ordinarily a written contract, before breach, may be varied by a subsequent oral agreement, made on a sufficient consideration, as to the terms of it which are to be observed in the future. Such a subsequent oral agreement may enlarge the time of performance, or may vary any other terms of the contract, or may waive and discharge it altogether,” Hastings v. Lovejoy, 140 Mass. 261, 264; and this rule applies although the original contract, as in the case at bar, falls within the statute of frauds. Cummings v. Arnold, 3 Met. 486. Stearns v. Hall, 9 Cush. 31. Hastings v. Lovejoy, supra.

If the jury found that the oral agreement was proved and that the plaintiff thereafter had failed to comply with its terms, the defendant would not be liable for the payment of rent, not only because it could be found that he had been constructively evicted, Nesson v. Adams, 212 Mass. 429, Boston Veterinary Hospital v. Kiley, 219 Mass. 533, but because the plaintiff expressly had exonerated him from such payment. There is nothing in Holdsworth v. Tucker, 143 Mass. 369, relied on by the plaintiff, at variance with the conclusion here reached.

Exceptions sustained.