Gaertner v. Donnelly

DONAHUE, Justice. The plaintiff's declaration is on an account annexed for 'use and occupation for sign privileges of roof located at 237 Tremont and 112 Stewart Sts. payable in advance April 1, 1935 to May 1, 1935 $30. May 1, 1935 to June 1, 1935 30.' The trial Judge in the Municipal Court of the City of Boston found that 'prior to April 1, 1935, the plaintiff entered into a contract with the defendant * * * whereby the latter agreed to pay for the use of said roof for sign purposes the sum of $30, per month,' that 'the amount to be paid' was 'referred to in correspondence interchanged between the parties as 'rental' and that 'the defendant actually occupied said roof for sign purposes for the months of April and May, 1935 for the purposes agreed upon, without paying the monthly rental stipulated.' He found for the plaintiff in the sum of $60 and reported his refusal of requests for rulings filed by the defendant to the Appellate Division where an order was entered dismissing the report. The defendant's requests for rulings were to the effect that on all the evidence and the pleadings the plaintiff could not recover, specifying as the grounds for the requests that the relation of landlord and tenant did not exist between the parties, that it was necessary such a relationship should exist to enable the plaintiff to recover in an action for use and occupation of real estate and that the relation of the defendant to the plaintiff was that of a licensee and not that of a tenant.