THOMAS HOPKINSON & another, trustees, vs. STELLA C. KENNEDY.
Practice, Civil, Appeal, Requests for rulings. Municipal Court of the City of Boston.
Where, at the trial in the Municipal Court of the City of Boston of an action at law the evidence upon the material issues is conflicting and one of the parties presents requests for rulings of law which are based upon the assumption of certain facts and the judge makes findings against him as to those facts and refuses the requests on the ground that they are not applicable to the facts, a report of the case to the Appellate Division and an appeal to this court from an order by them dismissing the report raise no question of law.
CONTRACT for $68.75, for use and occupation of premises owned by the plaintiffs. Writ in the Municipal Court of the City of Boston dated November 2, 1915.
At the trial in the Municipal Court, the defendant presented requests for rulings applicable only to findings of fact from which an inference could be made that the plaintiffs had waived their right to the statutory notice of intention to quit. The judge found that there had been no such waiver, and refused the requests on the ground that they were not applicable to the facts found. He found for the plaintiff in the sum of $68.75, and at the request of the defendant reported the case to the Appellate Division, who dismissed the report. The defendant appealed.
Page 232
The case was submitted on briefs.
W. R. Scharton & J. H. Maguire, for the defendant.
W. Hirsh, for the plaintiffs.
BY THE COURT. This is an action of contract for use and occupation of premises owned by the plaintiffs. The view of the record most favorable to the defendant is that there was conflicting evidence whether the defendant had given notice to end the tenancy, whether the plaintiffs had waived the statutory notice of intention to terminate the tenancy by the defendant, and whether the plaintiffs had accepted a surrender of the premises and agreed not to hold the defendant responsible for more rent. All these issues of fact were decided against the defendant. They were pure questions of fact. The requests for rulings all were denied rightly on the ground that they were not applicable to the facts found. No question of law is presented by the appeal.
This appeal is within the terms of R. L. c. 156, ยง 13. The order of the Appellate Division dismissing the report is affirmed and, from the time when the appeal was taken, double costs are awarded against the defendant and interest at the rate of twelve per cent per annum on the amount found due for debt.
So ordered.