Wescott v. Luttazi

Qua, J.

The case made out by the bill, filed February 27, 1936, is this: The plaintiff had held a house in Dover as lessee of the defendants under a lease dated October 28, 1931, for a term expiring October 31, 1932, with a provision for extensions for one year each upon the lessee giving written notice on or before October 1 in each year. The last such extension provided for in the lease expired October 31, 1934. On October 26, 1934, the parties agreed in writing to extend the option provision from year to year, the plaintiff to be entitled to one year’s extension for every $250 which he should expend in making certain fixed improvements upon the premises, and “a proper lease or extension of the old one” to be drawn “as promptly as possible.” In reliance upon the agreement the plaintiff has expended more than $5,000 in improvements. He has occupied the premises continuously, paying the monthly rent, and has been and is ready and willing to execute a new lease in accordance with the agreement, but the defendants have refused to execute such lease and on January- 28, 1936, gave the plaintiff notice to quit and now contemplate evicting the plaintiff. The principal prayer is for specific performance of the written agreement.

The defendants’ demurrers are now urged upon the sole ground that the plaintiff fails to allege that the plaintiff exercised his option to continue the lease by giving written notice on or before October 1, 1935. The defendants argue that because of failure to give this notice all of the plaintiff's rights ceased on October 31, 1935.

The defendants’ contention cannot prevail. On October 1, 1935, there was no lease in existence. The original lease had wholly expired by its own terms. The written agreement of October 26, 1934, is most informally drawn in the shape of a letter. It plainly contemplates the drafting of *544 another instrument and is not itself a lease. McGrath v. Boston, 103 Mass. 369 . On October 1, 1935, the plaintiff had only an equitable right to obtain the new instrument which it was the defendants’ duty to give him. Judkins v. Charette, 255 Mass. 76, 81 . Nothing in the agreement required the plaintiff to give notice of extensions as if the new lease were already in force any more than he was required to perform all the other terms of a lease which had not yet come into existence. His failure to give notice did not discharge his equitable cause of action. Looking at the case from another angle, it may be said that the defendants by failing to perform the agreement on their part had waived notice of extensions.

Decrees affirmed.