6 Cush. 415, 60 Mass. 415

October, 1850

Norfolk County

If a lessor, after giving the lessee a general notice to quit, accepts rent for a time subsequent to the expiration of the notice, he thereby waives the notice, and admits the continuance of the tenancy.

THIS was a proceeding under the Rev. Sts. c. 104, § 4, to recover possession of leased premises by the landlord, and was submitted to the court of common pleas, from whence it came

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to this court by appeal, upon the following agreed statement of facts: —

The defendant, at the time of the commencement of the process, was in the occupation of the premises, at a rent of $7 a month, payable monthly. On the 7th of August, 1849, at which time there was no rent due, the plaintiff gave the defendant a written notice to quit, in the following form: —

"You being in possession of the basement story of my house, situated on Tremont street, in the city of Roxbury aforesaid, are hereby notified to quit and deliver up to me the premises aforesaid, according to law. Hereof fail not, or I shall take a due course of law to eject you from the same."

And no other notice to quit was ever given him.

On the 3d of September, 1849, the plaintiff commenced a suit for possession, which was continued until the 17th of September, when the plaintiff became nonsuit. On the 19th of September, 1849, the defendant paid the plaintiff all the rent due, up to that time, and two days afterwards, before any further rent had accrued, the plaintiff commenced the present proceeding. On the 14th of January, during the pendency of the action in the court of common pleas, the defendant paid and the plaintiff received $15, on account of the rent of the premises.

J. J. Clarke, for the plaintiff. The receipt of the rent which was due was no waiver of the notice. The notice was general in form; it was not expressed to be "for non-payment of rent," as in Tuttle v. Bean, 13 Met. 275 , and therefore comes under Rev. Sts. c. 60, § 26.

F. Hilliard, for the defendant, cited Prindle v. Anderson, 19 Wend. 391; Goodright v. Cordwent, 6 T. R 219; Jackson v. Sheldon, 5 Cow. 448; Zouch v. Willingale, 1 H. Bl. 311; Dorrell v. Johnson, 17 Pick. 263 , 267.

BY THE COURT. The acceptance of rent, as rent, for a time subsequent to the expiration of the notice, was an admission of the continuance of the tenancy, and a waiver of the notice; so that the plaintiff cannot recover.

Judgment for the defendant.