This action of summary process to recover possession of land, under G. L. (Ter. Ed.) c. 239, was begun in a District Court by writ dated March 7, 1941. The premises consisted of a gasoline filling station in that part of Boston called Brighton. On appeal to the Superior Court, the case was tried to a jury.

The defendant held the premises under a written lease from the plaintiff, dated July 27, 1939, which was to run until some time in 1949. The tenancy began on November 28, 1939. The rent was one cent a gallon for all gasoline delivered on the premises, payable monthly on the fifteenth day of each month, with a minimum rent of $125 a month. By a supplemental agreement, dated November 28, 1939, the rent was somewhat increased. Payment of rent as agreed was made a condition of the lease, and a right was given the lessor to enter for nonpayment of rent after ninety days.

At the trial there was evidence for the plaintiff as to the amount due as rent when the plaintiff made an open, peaceable and unopposed entry upon the premises on March 7, 1941, and as to the length of time that that rent had been due. Some of that evidence was admitted over the exceptions of the defendant, but those exceptions need not be considered. The defendant conceded at the trial that the filling station closed “sometime in December, 1940,” and that thereafter no rent was paid. But there *422was no concession that any rent had remained unpaid for ninety days before the entry.

Over the exception of the defendant, the judge ordered a verdict for the plaintiff.

The jury had a right to disbelieve the evidence for the plaintiff, though it was uncontradicted. The concession of the defendant did not go far enough to make out the plaintiff’s case. Consequently the direction of a verdict for the plaintiff was error. We need not consider the effect in equity of the payment by the defendant of the rent found due from it to the plaintiff in the case of Davis & O’Connor Co. v. Shell Oil Co. Inc. 311 Mass. 401. In this case we are dealing only with the legal, not the equitable, rights of the parties.

Exceptions sustained.