Home FRANK E. BERMAN & others vs. HORSEMEN'S BENEVOLENT & PROTECTIVE ASSOCIATION & another.

354 Mass. 777

November 29, 1968

This petition in the county court for leave to appeal late from a final decree of the Superior Court alleges that "through accident or mistake or other sufficient cause" the petitioners omitted to claim an appeal within the time prescribed by law. G. L. c. 214, Section 28 (as amended through St. 1960, c. 207, Section 2). The petitioners here appeal from a final decree denying the petition. They charge that the single justice abused his discretion. The present record is meager. There is no transcript of the proceedings before the single justice. There is no finding or request for report of material facts. The only ruling is the decree itself. The Superior Court decree was the subject of a recent case before us where an order denying a motion to vacate the decree was affirmed in a rescript opinion. Berman v. Horsemen's Benevolent & Protective Assn. ante, 768. That appeal was utterly without merit, and did not deserve a longer opinion. The present petition for leave to appeal late is from the same Superior Court decree, and is tantamount to an attempt to obtain a rehearing. Examination of the transcript of the original proceeding which was before us in the previous case, even if treated as properly here on this second appeal (Wall v. Old Colony Trust Co. 177 Mass. 275 , 279, Lunn & Sweet Co. v. Wolfman, 268 Mass. 345 , 349), shows no abuse of discretion in denying the petition. The decree of the single justice was conclusive that there was no accident, mistake, or other sufficient cause, and that there was no meritorious case for presentation to a court. General Motors Corp., petitioner, 344 Mass. 481 , 482. Fall River, petitioner, 346 Mass. 333 , 335. Reder, petitioner, 351 Mass. 710 .

Decree affirmed.

Home TAYLAN REALTY CO., INC. vs. THE STUDENT BOOK EXCHANGE, INC.

354 Mass. 777

November 29, 1968

This is an action brought in the Municipal Court of the City of Boston to recover damages for breach of the provisions of a written instrument. The instrument provided for a lease to be executed containing inter alia the "usual agreements." The defendant vacated the premises which it had been occupying under the instrument and delivered the keys to the plaintiff. The plaintiff accepted the keys unconditionally, without protest

Page 778

and leased the premises to another. The instrument was not a lease but merely an agreement to enter into a lease. See Riedel v. Plymouth Redevelopment Authy. ante, 664, 665. The acts of the parties constitute a surrender of the premises and terminate the tenancy. See Caruso v. Shelit, 282 Mass. 196 , 199. As the agreement did not contain a provision saving the plaintiff's right to damages arising after its termination, it is not entitled to recover for the subsequently lost rent. Deane v. Caldwell, 127 Mass. 242 , 248. Sutton v. Goodman, 194 Mass. 389 .

Order of the Appellate Division affirmed.