By the terms of the lease to Harris, the plain*394tiff’s assignor, it was to become null and void at the defendant’s option, upon the failure by the lessee to pay any or either of the monthly payments of rent when due. Harris paid the rent up to the first day of January, but failed to pay the monthly rent which became due in advance on that day. Thereupon the defendant, on January 2, 1905, by notice to Harris, declared the lease null and void, and afterwards actually ejected him from the leased premises, upon an execution taken out on a judgment obtained against him under R. L. c. 181. The plaintiff now sues to recover the deposit made by Harris as security for the performance by him of the terms and obligations of the lease; and the defendant claims that the action was prematurely brought and cannot be maintained, and that he at any rate has the right to deduct from the amount of the deposit all that he has lost and is liable to lose by Harris’s breach of the terms of the lease and by the fact that it has been found impossible to relet the premises except for a much smaller rent than was reserved in the original lease. The specific questions which come before us are upon the defendant’s exception to the judge’s refusal to give certain rulings for which he asked.
It was impossible to rule that the plaintiff had no claim against the defendant. Doubtless her rights are no greater than those of Harris would have been; but he himself could have maintained an action upon the defendant’s covenant to repay the deposit to him. The defendant had chosen to terminate the lease, and it had become null and void. This was the expiration of the lease within the meaning of those words in the defendant’s covenant. The provisions of R. L. c. 129, § 8, do not apply here; but even if the rent for the month of January could be apportioned under that statute (see Withington v. Nichols, 187 Mass. 575) yet as the defendant actually ejected Harris on the twenty-second day of that month, he could not be entitled to deduct more than twenty-two days’ rent, which would leave in his hands a considerable amount for which the plaintiff, at the date of her writ, had a clear right of action. For the same reason the action was not prematurely brought. The first, second and third requests could not have been given.
The sixth and eighth requests rightly were refused. The lease became terminated when the defendant exercised his *395option to declare it null and void. It did not, as in Edmands v. Rust & Richardson Drug Co. 191 Mass. 123, contain any covenant by Harris to make up any loss of rent that might follow such a termination. Having terminated the lease and evicted the lessee, the defendant, under the terms of this lease, had no further claim against the lessee.
The fourth and fifth requests are in themselves correct statements of the law. Whether they are applicable to the case and should have been given depends upon whether it appears that the defendant has sustained any damage which he has the right to deduct from the deposit. Harris’s default was a failure to pay the rent which was payable in advance on the first day of January for that month. The defendant, as he had a right to do, terminated the lease on the second day of January; but Harris continued to occupy the leased premises until January 22, when the defendant actually evicted him. Under Harris’s covenant in the lease to pay the rent during the term “ and for such further time as said Harris may hold the said premises,” the defendant could require him to pay rent until the premises were actually given up, unless he had lost this right by his eviction of Harris during the month. This eviction was lawful, for it was in accordance with the covenants of the lease. Harris’s default was without excuse ; he should have paid the rent that became due and payable on the first day of January. But this monthly rent was an indivisible item ; and while it was payable in advance before the defendant elected to terminate the lease, yet that election and termination of the tenant’s rights destroyed the right which the defendant previously had to require the payment of the rent for that month, and destroyed it as to the whole amount of that rent. Hammond v. Thompson, 168 Mass. 531. There can be no apportionment of the rent. Knowles v. Maynard, 13 Met. 352. Dexter v. Phillips, 121 Mass. 178,180. But Harris continued in occupation until January 22, when the defendant expelled him and took possession. The defendant’s right to recover rent as such for the month of January was destroyed by his termination of the lease on the second day of the month. Smith v. Shepard, 15 Pick. 147. Nicholson v. Munigle, 6 Allen, 215. The lease expired accordingly on the second day of January, and the defendant lost his light to the rent for that month.
*396But Harris under liis covenant was held to pay rent at the rate stated in the lease- for the twenty days during which he occupied after its termination; and the defendant had the right to deduct this amount from the deposit which was made as security. Rice v. Loomis, 139 Mass. 302. The attention of the judge was called by the requests to this subject, and we are of opinion that the fourth and fifth requests should have been given. Emmes v. Feeley, 132 Mass. 346. It is not necessary however that the whole case should be -retried. The defendant is entitled to no further deduction than the amount of rent for twenty days, which would be $50, or one sixth part of the deposit. The order will be that if the plaintiff shall remit the sum of $51.16, being one sixth part of the finding in her favor, the exceptions are to be overruled; otherwise
Exceptions sustained.