11 Barb. 592 | N.Y. Sup. Ct. | 1852
By the Court,
The consideration clause in the assignment of the lease was open to explanation by parol evidence. (McCrea v. Purmort, 16 Wend. 460. Adams v. Hill, 2 Denio, 306. Cowen & Hill’s Notes, 1441.) But do the questions raised in the case turn upon the rule in relation to explaining or contradicting.the consideration clause? Would not the evidence offered have contradicted the contract between the parties ? The obligations which the law, under the contract, imposed upon the parties, constitute a part of the contract. Whatever is to be legally implied from a contract, is a part of it. The defendant was lessee of Perry; a year’s rent was to become due in April, and in January previous he assigned and set over to the plaintiff all his right, title and interest in and to the lease. The plaintiff accepted the assignment and entered into possession. As between the plaintiff and defendant upon whom did the law impose the obligation to pay the rent when it became due in
If the plaintiff, by accepting the assignment of the lease and entering into possession, became bound, as to the defendant, to pay the rent when due, then any evidence to show that the defendant agreed to pay it, would contradict the contract — that is, the legal effect of the contract. I am not aware that this question has been decided by our courts.
A less,or may resort to his lessee upon his covenants in the lease, for the rent, or to the assignee, upon the privity of estate. (Comyn, L. and T. 270.) But suppose the lessor collects the rent of the lessee, may he collect the amount he has been compelled to pay, from his assignee ? or, if the lessor collects the rent of the assignee, has the latter any claim upon the lessee for a portion of the rent so paid ?
In my opinion when the assignee accepts the assignment of a lease prior to the rent becoming due, he takes it cum onere— subject to the payment of the rent which shall thereafter become due, and to the performance of the covenants running with the land, which, by the terms of the lease, the lessee was bound to perform. He must pay the whole rent when it becomes due, and he can not collect a portion of it from the lessee his assignor. The rent, as between them, in the absence of any special agreement, can not be apportioned. The assignee having accepted the assignment and entered, impliedly undertakes to pay the rent and save the lessee harmless. If he fails to pay, the breach occurs while he is tenant, and the lessee is in danger by reason of his covenant broken.
In the present case the defendant assigned to the plaintiff his right, title and interest in the lease : that right was to enjoy the premises upon certain terms, viz. “ at the yearly rent of $70,” payable in April of each year ; and when the plaintiff accepted the assignment he entered into the place of the defendant and took the premises subject to the accruing rent. This was the legal effect of the written contract; and any evidence to show that the defendant was to pay the rent becoming due in April,
Taggart, Marvin, Hoyt and Mullett, Justices.]
In Bennett v. Lynch, (5 B. & C. 589,) the lessor had assigned the lease. Certain covenants running with the land were broken while the assignee was in possession, and the lessor, for these breaches recovered damages of the lessee, who then sued his assignee in an action on the case founded upon the duty or obligation of the assignee to perform the covenants and save the lessor harmless. The action was sustained. All the judges delivered opinions. They held that it was the duty of the assignee to pay the rent and perform the covenants in the lease.
Adams v. Hull, (2 Denio, 306,) is not in point. The decision was put expressly upon the ground that the evidence offered went only to vary or contradict the consideration clause of the assignment. In the present case the evidence offered would have contradicted an essential part of the contract, which imposed obligations upon one of the contracting parties. The evidence was properly rejected, and the judgment should be affirmed.
