Porter v. Merrill

124 Mass. 534 | Mass. | 1878

Ames, J.

The written contract declared upon purports to be a lease, for a precise time and at a definite weekly rate, of certain specific rooms, so separated from all other rooms in the same house as to become in fact and in law the separate tenement of the lessees. It thus had the ordinary characteristics of a lease, and is not the case of a contract between the keeper of a boarding-house and a lodger. See White v. Maynard, 111 Mass. 250, in which this subject is fully discussed, and the authorities are collected and analyzed. The fact that, besides leasing the rooms, the lessor undertakes to furnish certain specific accommodations, and imposes certain restrictions as to the manner in which the premises are to be occupied or used, does not change the essential character of the instrument. It was entirely at the option of the plaintiffs in review whether to take their meals at the restaurant on the premises or elsewhere, and their contract was not that of a boarder.

The original lessors gave their assent in writing to the assignment of the lease to Lewis. , This assent was accompanied with certain “conditions,” which Lewis in writing agreed to, and promised to fulfil. Whether these written stipulations created a condition in the strict technical sense, capable, if broken, of defeating the assignment, it is hardly necessary to consider. See Huff v. Nickerson, 27 Maine, 106; Paschall v. Passmore, 15 Penn. St. 295, 307. There is no evidence of any such breach, and the original lessors alone could take advantage of it, if any had occurred. Taylor on Landlord & Tenant, (5th ed.) § 492. The condition is that the lessors, and not any other party, may, in a certain contingency, enter and determine the lease. The assignment from Lewis to Merrill was sufficient to transfer the lease declared on and all rents that should thereafter accrue or become payable. There was evidence that the Porters had knowledge of this assignment; and the payment of rent to Merrill would be an acknowledgment of his title. The rulings requested by the original defendants, upon this part of the case, were properly refused; and the instruction that the consent by the lessors once given, and their acceptance of rent from Merrill, amounted to a waiver of the covenant not to assign, was correct. The instrument declared upon was a valid lease, and its assignment to Merrill entitled him primé facie to maintain the action. Patten v. Deshon, 1 Gray, 325.

The instructions given in regard to the stipulation for the service of a private table, and the question as to the sending out for meals to a neighboring hotel or restaurant, were carefully guarded, and appear to us to have been wholly unobjectionable. With regard to the message to the original defendants, the servant having testified that he delivered it, the court in its discretion might allow proof to be given as to what the message was is communicated to the servant, in order to show that he acted within the authority given him. Exceptions overruled.