Wilson v. Prescott

Peters, J.

The plaintiff claims to hold the defendants to the terms of a lease not signed by them. They expected to execute it, but neglected to do so. If a verb allease is not binding beyond a tenancy at will, a fortiori a verbal agreement to make a lease would not be. The plaintiff adds nothing to the strength of his position by insisting that thereby the defendants committed upon him an act of fraud. The act alone, and not the motive for it, furnishes the criterion whether there has been a compliance with the requirements of the statute. It does not appear that the defendants would not have signed the lease upon request, at any time before a dissatisfaction grew up about the occupancy of the premises.

The defendants gave due notice that they would quit the premises on Jan. 1, 1872, when the quarter’s rent was payable. It is argued that they could not terminate the tenancy at will on that day, because they were then, and ever since have been, owing a small amount of rent for their occupancy before that time. This question involves a construction of the provision of the statute, that “all tenancies at will may be determined by either party by thirty days’ notice “ * excepting cases where * * * no rent is due at the time the notice expires.” This clause is awkwardly worded, if not obscure. Ve are satisfied, that the con *118 struction placed upon it by tbe counsel for the defendants, is the correct one. The expiration of the thirty days’ notice to terminate the lease at will must be coincident in point of time with a pay-day of rent. Such notice given by either side will be valid. But there is an exception to this requirement, so far as a termination by the landlord is concerned. His notice to the tenant may be thirty days without respect to any pay-day, if when the notice expires, the tenant shall be in any arrears of paying his rent. That is, it matters not whether any rent becomes payable on such particular day or not, if any rent previously due then remains unpaid. The privilege of giving the limited notice is accorded only to the landlord. Of course the tenant cannot take advantage of his own wrong. The correctness of this construction is the more apparent from a reference to the act contained in R. S., of 1841, c. 95, § 19, from which. the idea of the present statute is derived, which is this : — “all tenancies at will may be determined by either party, by three months notice in writing, for that purpose given to the other party ; and, when the rent, due upon such lease, is payable at periods of less than three months, the time of such notice shall be sufficient, if it be equal to the interval between the days of payment; and, in all cases of neglect or refusal to pay the rent due on a lease at will, thirty days’ notice to quit, given in writing by the landlord to the tenant, shall be sufficient to determine the lease.”

The plaintiff further contends that leaving the ashes on the wharf, in the manner described in the report of the case, was a waiver by the defendants of the notice to terminate the tenancy, and amounted to a continued use and occupation of the estate. We think otherwise. So far as the tenants, by any act of their own, left the premises in an untenantable condition, they would be liable for the extent of the injury in a special action adapted to the facts of the case.

The defendants admit'$37.50 to be due for a balance of rent on Jan. 1,1872, and claim that it is more than paid by certain store accounts to be allowed thereon. Hpon the facts presented, how *119 ever, this point is not made out. Therefore a default is to be entered for a sum equivalent to the sums of $19, and interest from the date of the writ, and $37.50 and interest from August 1,1872.

Judgment for $56.50 and interest.

Appleton, C. J., Cutting, "Walton, Dickerson, and Barrows, JJ., concurred.