| NY | Apr 5, 1850
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *288 Between the lessor and the under tenant of the original lessee, there is neither privity of estate nor privity of contract; the lessor therefore can not sue the under tenant upon the lessee's covenant to pay rent. In the present case, the lease by the plaintiff to Elliott was not by deed; but the defendant entered under Elliott, and it was necessary for the plaintiff on the trial to show some privity of contract between *289 himself and the defendant, that is to say; some promise by the defendant, express or implied, to pay the rent to the plaintiff. The action for the use and occupation of the premises could not otherwise be maintained by the plaintiff.
The case was put upon this ground in the court below, in the charge to the jury. The only question therefore, is, whether there was evidence proper to be submitted to the jury of the defendant's promise, express or implied, to pay the rent to McFarlan, the plaintiff.
I think there was such evidence. The defendant paid the first three quarters' rent to Oakley, the agent of the plaintiff, and none of it to Elliott, under whom he now claims to have held the premises. Elliott resided in the city of New-York, and the rent might as conveniently have been paid to him as to the plaintiff's agent; and no good reason is shown why the rent was not paid to Elliott, if the defendant did not intend to recognize McFarlan, the owner, as his landlord. The receipt for the first quarter's rent, due on the first of August, is signed by Richard Oakley, as the agent "of the owner." The receipts for the next two quarters are signed, "For Henry McFarlan, Richard Oakley, agent." The last receipt contains no recognition of the lease to Elliott, but is drawn, in all respects, as if the defendant Watson was the immediate tenant of McFarlan. John M. Watson's testimony does not materially contradict the effect of the first receipt. He says, that when he paid the first quarter's rent on the 5th of August he had understood that Elliott was the agent of the owner of the house, and he wanted a receipt that would show the rent was paid to Oakley as the agent of Elliott, and the rest of the owners. This is not very easy to understand. McFarlan was the owner, and Elliott was his immediate lessee, under whom he says the defendant claimed to hold. But he insisted, it seems, on an acquittance from McFarlan, and he obtained it. The receipt was such an acquittance, but it was not in its terms an acquittance from Elliott.
These payments, and especially the last of the three, afford a strong presumption that the defendant, by the assent of Elliott *290 had become the immediate tenant of the premises under McFarlan. Men do not often pay their debts to persons not entitled to receive the money, or take discharges from those who have no authority to give them. If the defendant was, and continued to be the tenant of Elliott, and not of McFarlan, the payments to McFarlan did not discharge the defendant from his liability to Elliott. The only authority from Elliott for the payments to McFarlan, is contained in his letter to Oakley, of the 10th of April, 1846, in which he requests Oakley to arrange with the defendant, by giving him the lease of the house; and although he refused to do this at the time, the payments and receipts for the rent are strong presumptive evidence that it was afterwards assented to, so far at least, as respects the year for which Watson appears to have taken the house.
There was nothing erroneous in denying the motion for a nonsuit, or in the charge to the jury.
Judgment affirmed.