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

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

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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.