FRANK E. BERMAN vs. CHARLES W. ROWELL. SAME vs. FRED HOLDSWORTH & another. SAME vs. SAME. SAME vs. FRED HOLDSWORTH & others.

FIELD, J. These four actions, two in contract and two in tort, were brought by the plaintiff to recover damages alleged to have been sustained by him in consequence of the breach of a covenant, contained in an instrument of lease of certain real estate in Boston, purporting to restrict the landlord's right to terminate the lease. One action of contract was brought against the defendant Rowell, and one against the defendants Holdsworth and Farrington, for breach of such covenant. One action of tort was brought against the defendants Holdsworth and Farrington for inducing the defendant Rowell to break such covenant, and the other against the defendants Holdsworth, Farrington and Rowell for conspiring to cause the lease to be terminated and the plaintiff to be deprived of the premises unlawfully and in violation of said covenant.

At the trial before a judge and a jury the plaintiff testified that, in 1926, he negotiated with the defendant Farrington, in his office, for a lease of the premises in question, title to which stood in the name of the defendant Rowell, but was held by him for the benefit of the defendant Farrington, as the real party in interest, and that an instrument of lease was executed. This instrument, which was dated April 1, 1926, and entitled, "Tenancy at Will," was introduced in evidence. It was executed under seal by the plaintiff and the defendant Rowell and provided in part as follows: "Frank E. Berman, of Boston, Mass., (hereinafter called the Tenant) hereby hires of Charles W. Rowell, of Brookline, Mass., (hereinafter called the Landlord)" the premises in question. "The Tenant agrees to pay rent therefor at the office of the Landlord from the fifth day of April, 1926 at the rate of Five hundred . . . dollars monthly payable in installments of $125.00 per week in advance, which are not to exceed the $500. in any month. . . . Either the Landlord or the Tenant may terminate this tenancy 30 days from the first day of any month, provided written notice of intention so to do shall have been given to the other prior to such rent day . . . also, this agreement is

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on condition that, if the Tenant fails to perform any of the agreements herein, the Landlord may immediately or at any time thereafter without demand or notice enter upon the premises, terminate the tenancy and repossess the premises as of the Landlord's former estate .... The Tenant agrees, in case of termination by notice as aforesaid, to pay to the Landlord rent at the rate hereinbefore reserved to the date of such termination or to the date said premises are yielded up to the Landlord ... if later than the date of such termination, and in case of termination for breach of condition as hereinbefore provided or under the provisions of statute, the Tenant agrees to pay forthwith to the Landlord as liquidated damages a sum equal to the rent which would have been due at the next rent day succeeding such termination . . . . This lease shall not be terminated by the Landlord as above provided unless a tenant is obtained for this space who is willing to take a lease on the same basis as other stores in the block owned by the Landlord."

There was evidence that the plaintiff "entered the premises, the rent starting on Monday, April 5, 1926," that "On or about September 29, 1926, said Charles W. Rowell, in whose name the property stood, executed a lease of the premises to the Washington Jewelry Company, the term of which was to commence November 1, 1926, and caused notice of this lease and a notice to quit to be served upon the plaintiff" - it was agreed that the "sufficiency and efficacy of these notices . . . [were! not in question if the instrument . . . actually created a tenancy at will" - that in said lease "the rental price agreed upon was less per square foot of space than that of other stores in the block owned by the landlord," that a few days after the receipt of the notices the defendant "Farrington . . . appeared at the plaintiff's store and told the plaintiff that if he did not get out in compliance with the terms of the notice, he would 'throw' him out." There was evidence also that, on November 1, 1926, the Washington Jewelry Company delivered a notice to quit and the premises were vacated.

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After the plaintiff had rested, the defendants moved for directed verdicts in their favor. The trial judge stated as his ruling "that the written instrument entitled 'Tenancy at Will' . . . created no more than a tenancy at will and that such tenancy was terminated by the lease given by the defendant Rowell to the Washington Jewelry Company, if not by the notice to quit in thirty days given directly to the plaintiff," ordered a verdict for the defendants in each case and reported the cases to this court, "the verdicts to stand and judgment to be entered for the defendants if . . . [the] ruling and direction to the jury were right," but, if "the cases should have been submitted to the jury," they are "to stand for trial."

It is not contended that the tenancy was not terminated if the lease "created no more than a tenancy at will" or that the tenancy created was not at the will of the tenant.

The plaintiff contends that the ruling and direction of the trial judge were wrong since, though the tenancy was at the will of the tenant, it was not at the will of the landlord and by express provision in the instrument could not be terminated by him unless a tenant was "obtained for this space . . . willing to take a lease on the same basis as other stores in the block owned by the Landlord" and the evidence warranted a finding that such a tenant was not obtained. The defendants reply that, in spite of the language of the instrument, relied on by the plaintiff, the tenancy was at the will of both parties, according to a principle which goes back to Co. Lit. § 55a, of which Chief Justice Shaw said, in Cheever v. Pearson, 16 Pick. 266, 272, "the rule is settled, and has been unquestioned from Lord Coke's time to the present, that every lease at will must, in law, be at the will of both parties. Therefore when a lease is made to hold at the will of the lessee, it must also be at the will of the lessor," and of which it was said recently in Foley v. Gamester, 271 Mass. 55, 56-57, "In this Commonwealth . . . we consider it to be settled that where the lessee is not bound for any definite period and is at liberty at any time to terminate the tenancy, the estate is not a term of

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certain duration, and as the lessee is not bound to remain for any definite period, the landlord is not prevented from ending the relation." See also Murray v. Cherrington, 99 Mass. 229; O'Reilly v. Frye, 263 Mass. 318.

The trial judge was right in ruling that the instrument "created no more than 'a tenancy at will." An instrument of lease, whether or not a conveyance within the meaning of some statutes, is in the nature of a conveyance as well as of a contract. The instrument here in question conveyed an estate at the will of both parties. The estate conveyed was characterized by the instrument as a "Tenancy at Will." The instrument provided expressly for its termination by the landlord, as well as by the tenant, upon thirty days' notice. That the landlord had such power of termination was recognized by his agreement that he would exercise the power only under certain conditions. This agreement purported to limit the landlord's right to terminate the tenancy by thirty days' notice. (Whether it purported to limit his right to terminate the tenancy "for breach of condition . . . or under the provisions of statute" is not now material.) It did not purport to limit the landlord's right to terminate the tenancy indirectly by leasing the premises to another tenant. See Howard v. Merriam, 5 Cush. 563, 573-575; DeWolfe v. Roberts, 229 Mass. 410. Whatever the effect of this agreement as a contract or covenant, it is not to be interpreted as changing the quantum of the estate conveyed. Consequently, we need not determine whether Lord Coke's rule extends to a case where, according to the terms of the instrument, though the estate could be terminated at the will of one party, its duration was fixed as against the other party. Compare In re Threlfall, 16 Ch. D. 274. In the cases in this Commonwealth, cited above, in which the rule was applied, the tenancy was expressly at the will of one party and its duration as against the other party was left to implication.

Though the instrument conveyed only an estate at will, the plaintiff had contractual rights under the landlord's agreement that the lease should not be terminated by him

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by a thirty days' notice unless a tenant was "obtained . . . willing to take a lease on the same basis as other stores in the block." The instrument was under seal and, moreover, there was consideration for the landlord's promise. No rule of law prevents giving effect to this express agreement of the parties, It is not repugnant to the provisions of the instrument creating a tenancy at will, but is within the principle, applicable to such a tenancy, "that the parties may agree between themselves as to the time and manner in which the tenancy may be terminated." Davis v. Murphy, 126 Mass. 143, 145. See Lyon v. Cunningham, 136 Mass. 532, 541.

It follows from what has been said that the ruling of the trial judge that the "tenancy was terminated by the lease given by the defendant Rowell to the Washington Jewelry Company, if not by the notice to quit in thirty days given directly to the plaintiff," was correct and that such termination of the tenancy by lease would not be a breach of the landlord's agreement.

It was error, however, to direct a verdict for the defendant in the action of contract against the defendant Rowell. It could have been found that this defendant terminated the tenancy at will by thirty days' written notice and thereby broke his contract not to terminate the tenancy in that manner unless a tenant was "obtained . . . willing to take a lease on the same basis as other stores in the block." There was evidence that such a notice to terminate was given on or about September 29, 1926. By the terms of the instrument of lease the tenancy would terminate "thirty days from the first day" of the following month, that is, on October 31, 1926. Bemis v. Leonard, 118 Mass. 502. The tenancy had not then been terminated by the lease to the Washington Jewelry Company, which created a tenancy beginning on the following day. No question is before us on this record as to the damages, if any, which the plaintiff suffered from breach of contract by the defendant Rowell.

A verdict for the defendants was directed rightly in the action of contract against the defendants Holdsworth and

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Farrington. They were not parties to the instrument of lease. They could not be sued upon it as an instrument under seal and the seals cannot be disregarded in order to charge them. Seretto v. Schell, 247 Mass. 173, 176, and cases cited. Moreover, there was no evidence whatever connecting the defendant Holdsworth with the property. Verdicts also were directed rightly in the actions of tort. There was no evidence that the defendants Farrington and Holdsworth induced the defendant Rowell to break his contract or to terminate the lease in an illegal manner, or that the three defendants conspired to terminate the tenancy or deprive the plaintiff of the premises in violation of the agreement of the defendant Rowell or otherwise unlawfully. The defendant Rowell had a right to terminate the tenancy, even if that was his sole purpose, by leasing the premises to another tenant, and an action for conspiracy to accomplish this purpose by lawful means will not lie. Groustra v. Bourges, 141 Mass. 7, 9. DeWolfe v. Roberts, 229 Mass. 410, 412-413.

In accordance with the terms of the report, the action of contract against the defendant Rowell is to stand for trial, but in the other actions the verdicts are to stand and judgments are to be entered for the defendants.

So ordered.