293 Mass. 182

January 6, 1936 - January 8, 1936

Court Below: District Court, Southern Norfolk

Present: Rugg, C.J., Crosby, Field, Lummus, & Qua, JJ.

Practice, Civil, Requests, rulings and instructions.

In an action to recover rent of a house, with no proof of the defendant's tenancy, a request that in an action for rent "the burden of proof is on the defendant to establish an alleged surrender of occupation" properly was denied as inapplicable.

CONTRACT. Writ in the District Court of Southern Norfolk dated December 13, 1934.

In the District Court the action was heard by Iddings, J., who found for the defendant. The plaintiff appealed from an order by the Appellate Division for the Southern District dismissing a report.

J. Everett, pro se.

G. W. Grover, for the defendant.

BY THE COURT. This is an action of contract to recover (according to the bill of particulars filed by the plaintiff) for the use and occupation of a house in Canton, by Peter J. Farrell and family, for a period of fifteen months. It was the contention of the plaintiff that Farrell was a poor and indigent person. The trial judge found that Farrell was not a poor and indigent person in need of public assistance during the period covered by the plaintiff's claim. He also found that no notice and request as required by G. L. (Ter. Ed.) c. 117, § 24, were ever given to the board of public welfare of the defendant, and that the defendant never entered into any agreement with the plaintiff to assume the rent for the premises in question, but that the payments made to the plaintiff for June, July and August, 1933, were made for the convenience of the town of Canton. These findings appear to be warranted and must be accepted as true. The plaintiff requested rulings to the effect that (1) "This is an action for

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rent," and (2) "In an action of rent the burden of proof is on the defendant to establish an alleged surrender of occupation." The finding was for the defendant. The questions of law raised by the refusal to grant these requests alone were reported by the trial judge.

There was no error in the denial of the first request. Strictly construed there is no such form of action under the practice act as an action for rent. G. L. (Ter. Ed.) c. 231, § 1. The case, however, was tried on the theory of contract to recover rent, and no objection to the admission or exclusion of evidence was made. There was no error in the denial of the second request for the reason that the facts found showed that the plaintiff failed to establish any tenancy and that therefore the request was inapplicable to the facts as found.

Order dismissing report affirmed.