Citation Numbers: 153 Mass. 20
Judges: Allen
Filed Date: 1/8/1891
Status: Precedential
Modified Date: 6/25/2022
The jury might have found upon the evidence-that the stock, to recover the price of which this action is brought, was sold and delivered by the plaintiff to the defendants under an agreement that it was to be applied in part payment of the rent that should be reserved in a lease of a store that was to be given by the defendants to the plaintiff. The agreement was general and indefinite. The store was not finished at the time; when finished, the defendants were to give
The plaintiff contends that there had' been no breach of covenant, and that the entry was unlawful, and that therefore he can recover the price of the shares. The rent had not been paid according to the covenant of the lease, and the contention of the plaintiff is that there was evidence that the terms of the lease regarding the time of the payment of rent had been waived by the lessors. The rent was payable on the first day of each month. The plaintiff contends that evidence that the rent had not been paid monthly or regularly, that the defendants once gave a receipt for three months’ rent, part of which was in advance, and that the oral arrangement between them was that the rent should be paid once in three months, is sufficient to make the question of waiver one for the jury. The plaintiff himself, however, testified that the defendants, a few weeks before they took possession, notified him that he must comply strictly with the terms of the lease. But we do not think this material. If the defendants unlawfully evicted the plaintiff, it would not make them liable for the price of the stock, and the plaintiff’s remedy would not be by an action to recover that.
Exceptions overruled.