288 Mass. 341 | Mass. | 1934
The plaintiff has brought suit ‘for rent under a written lease for the term of four years given by him to the defendants in April, 1929. The declaration alleges that the defendants have failed to pay rent as provided in the lease during a fourteen months’ period beginning with the month of June, 1931, and ending with the month of July, 1932. At the trial, which was in the Superior Court before a jury, the plaintiff did not contend that he was entitled to recover rent for that period at the full monthly rate of $100 stated in the lease. He took possession of, and relet, the premises prior to June, 1931, and during the period in question received rent from his new tenants who were tenants at will. The plaintiff’s contention now is that he is entitled to recover the difference
The defendants were partners when the lease was made in April, 1929, and thereafterwards operated a store on the premises demised. In July of that year they formed a corporation to which was transferred all the assets of the partnership, which was then dissolved. The defendant Fahey in July, 1930, sold all his interest in the corporation to one Atkinson. The defendant Lydon, in January, 1931, told the plaintiff that the corporation was going into bankruptcy and that he “desired the plaintiff to make an effort to secure some other tenant for the premises described in the lease in order to reduce the liability to the plaintiff.” The foregoing evidence of what Lydon told the plaintiff was excluded as to the defendant Fahey, and the plaintiff excepted. Lydon thereafterwards sent one or two prospective customers to the plaintiff. A verdict for the defendant Fahey was directed and to this the plaintiff excepted. The plaintiff’s bill of exceptions brings to this court that exception and the above exception to the exclusion of evidence.
On the evidence which was admitted against the defendant Fahey, the verdict in his favor was rightly directed. The lease contained a provision that the lessor might enter and expel the lessees for nonpayment of rent. It contained, however, no covenant of indemnity or collateral agreement requiring the lessees, in the event of such entry or upon any termination of the lease, to pay to the lessor during the balance of the term of the lease the rent reserved or the difference between the amount of such rent and any lesser amount which might be received by him upon a reletting of the premises. (Compare Woodbury v. Sparrell Print, 187 Mass. 426; Edmunds v. Rust & Richardson Drug Co. 191 Mass. 123.) The plaintiff’s .reletting and delivery of possession to his tenants at will was necessarily
The exclusion, so far as Fahey was concerned, of certain of the testimony of Lydon was in effect a ruling that the evidence did not warrant the finding that Lydon had authority to bind Fahey by the arrangement with reference to entry and reletting which, it might be found, was made with the plaintiff. If he had such authority, the evidence should have been admitted against Fahey; if he did not, the plaintiff was not harmed by its exclusion. So far as the liability of Lydon was concerned, the entry and reletting, being at Lydon’s request and with his consent, did not free him from obligation with regard to the payment of rent in the future. The effect of that arrangement with respect to Lydon was to add to the contract expressed in the lease an obligation to indemnify the plaintiff for loss, in the event of his entry and reletting, through inability to rent the premises for the remainder of the term of the lease at the rental therein stated. Authority in Lydon to bind Fahey by such new arrangement did not exist by virtue of their former partnership. That had been dissolved eighteen months before the agreement was made by Lydon with the plaintiff. At the time the agreement was made the plaintiff knew that a corporation had been formed and
The only relationship existing between Lydon and Fahey at the time the agreement was made with the plaintiff was, as the plaintiff knew, that they were colessees. That agreement did not contemplate occupancy by them. It authorized an entry and a reletting to others by the plaintiff. There was no evidence that Fahey had given to Lydon any specific authority to make the agreement or that Fahey had at the time knowledge that it had been made. Their ' relationship as colessees in the circumstances appearing gave Lydon no implied authority to bind Fahey and thus without consent to defeat his right to treat an entry and a reletting by the plaintiff as a termination of the obligation to pay rent. McInnes v. Stuart, 267 Mass. 212, 216, 217. Harford v. Taylor, 181 Mass. 266. Bergland v. Frawley, 72 Wis. 559, 563. Williams v. Vanderbilt, 145 Ill. 238. Hooks v. Forst, 165 Penn. St. 238. While Lydon might
Since the evidence of Lydon in no way affected the rights of the plaintiff or of Fahey in the present suit there was no error in its exclusion as against Fahey.
Exceptions overruled.