173 Mass. 398 | Mass. | 1899
This is a claim against the insolvent estate of a deceased person for rent, taken by appeal from commissioners appointed by the Probate Court to the Superior Court, and now brought here on exceptions. The principal exceptions are to the admission of the sublease to the deceased person, one Michael T. F. O’Donnell, and to a refusal to rule that it was void for uncertainty. The sublease was of “ part of the third story and attic over same ” in an identified building. On October 1,1892, the date of the sublease, O’Donnell already was occupying a part
In December, 1893, the defendant, O’Donnell’s administratrix, assigned the lease contrary to the covenant contained in it and without the plaintiff’s, the sublessor’s, consent, to one McHugh, to whom afterwards the plaintiff sublet a strip on the plaintiff’s side of the partition which marked off the premises originally sublet, and the partition was moved so as to include the strip let to McHugh with that let to O’Donnell and assigned to McHugh. McHugh paid rent separately for the new strip, and the bills for the rent of the part formerly let were made out as they always had been, McHugh not being recognized in them. It is suggested that these facts constitute a surrender or an eviction. Argument cannot make it much clearer than it is upon a simple statement of the facts that there was nothing of either sort. There was nothing which looked like an assent of the plaintiff to letting the defendant give up the premises, or an attempt by the defendant to do so. The only thing which under any circumstances could suggest eviction, the change of the partition, seems to have been done at the request of the person who occupied the premises by the defendant’s consent, and who as against her was the mouthpiece of her wishes to the plaintiff. The third request, that upon all the evidence McHugh’s acts in changing the parti
Exceptions overruled.