260 Mass. 466 | Mass. | 1927
The plaintiff alleges that rent is due him under a lease of premises in Boston made by him to the defendants Cohen, Eilberg and the Pilgrim Clothing Company, Incorporated, and seeks to establish his debt and to compel the defendants Williams and Guterman, assignees for the benefit of creditors of the company, to pay to him the same percentage of the amount found due that they are to pay to other creditors of the company upon debts provable under the assignment.
-The cause is before us upon appeal from a final decree sustaining a demurrer and dismissing the bill. We are bound by the allegations of the bill and can accept as fact only what is well alleged therein.
It is the plaintiff’s contention that, by assenting to the assignment set out, he became entitled to demand of the assignees the amount which would have been payable to him if the property of the insolvent had been distributed under the insolvent law of the Commonwealth. He relies upon G. L. c. 216, § 33, which provides, in substance, that if a lease forms part of the insolvent’s property, the debtor or the lessor may at any time request the assignee either to accept and hold the leased premises under the lease, or to disclaim it. If he elects to disclaim, the lease is surrendered
His difficulty is that they are not applicable in the situation disclosed by the original or the amended bill.
On the face of the pleadings the lease is a lease from the plaintiff to the defendants Cohen and Eilberg as partners doing business under the firm name of the Pilgrim Clothing Company, Incorporated. It does not appear that a corporation of that name existed when the lease was executed. The allegation that Cohen and Eilberg were the sole owners of the stock of the corporation does not make the corporation a party to the lease. England v. Dearborn, 141 Mass. 590. Selden Truck Corp. v. Selden Truck Service Co. 257 Mass. 58, 61. There was nothing to show that the corporation ever became a party to the lease, except an inference from the signature which is contradicted by the language of the indenture. The assignment for the benefit of creditors set out as an exhibit is made by a corporation. It is not an assignment by Cohen and Eilberg. That such a corporation should exist and make the assignment referred to is not inconsistent with any fact alleged. So far as appears, Cohen and Eilberg have made no assignment for the benefit of creditors. The allegation in regard to their ownership of the stock does not amount to an allegation that they are insolvent or have assigned. The plaintiff in his assent to the assignment made by the corporation expressly reserves his right against them as individuals.
In this aspect of the case nothing appears to establish any right against the corporation or its assignees. There is no allegation, even, that they are in possession of the leased premises.
If we assume that the Pilgrim Clothing Company, Incorporated, is a lessee of the plaintiff, the case stands no better. There is no allegation that either that company or
There is nothing in Abbott v. Stearns, 139 Mass. 168, cited by the plaintiff, which supports a different conclusion. There is here no allegation on which to base an obligation of the assignees to pay a rent accruing in futuro.
The Superior Court was right in sustaining the demurrer.
Decree affirmed with costs.
