296 Mass. 590 | Mass. | 1937
This is an action of contract. The words of description following the name of the defendant in the writ, “assignee for the benefit of creditors of Louis Wernick,” are surplusage, for common law practice knows no action against one in his capacity as such assignee. If the defendant is liable at all in this action, judgment and execution will run against him as an individual. Alfano v. Donnelly, 285 Mass. 554, 555. Gerber v. Berstein, 295 Mass. 132, 135-137,
Prior to June 1, 1928, Harry Wernick “relinquished” to Louis Wernick all his right in the partnership assets. On June 2, 1928, Louis Wernick made a common law assignment to the defendant of all the stock and fixtures in the store and of "all my right, title and interest in and to any real estate which I own and which I can assign for the benefit of my creditors.” The lease, which was not specifically assigned, provided that the lessees shall not “lease, nor under-let, nor permit any other person or persons to occupy or
The plaintiffs declared upon an account annexed for rent for June, July and August, 1928, at $215 a month. After a verdict for the plaintiffs for $512, exceptions were overruled in Rainault v. Evarts, 288 Mass. 191. But judgment was vacated, and the case was tried anew by a judge without jury. He found and ruled (see Sylvester v. Shea, 280 Mass. 508) “that the assignment to the defendant included whatever interest in any real estate assignor Wernick had; that defendant assured plaintiffs] in substance that the rent would be taken care of; that the keys to the store were given up and accepted on July 9, 1928 . . . that the defendant was in constructive though not actual possession of the store premises until said July 9, 1928, from June 2, 1928,” and found for the plaintiffs and assessed damages in the sum of $366.77. The defendant alleged exceptions.
It is unnecessary to consider just what was the effect upon the leasehold of the fact that prior to June 1, 1928, Harry Wernick “relinquished” to Louis Wernick his interest as a partner. Louis Wernick always had a half interest at least in the leasehold. It was an “interest in . . . real estate” within the language of the assignment for the benefit of creditors, and passed thereby, as the judge ruled. Moulton v. Commissioner of Corporations & Taxation, 243 Mass. 129. H. P. Hood & Sons v. Perry, 248 Mass. 350, 352. Compare Harrison v. Blackburn, 17 C. B. (N. S.) 678. Though so far as appears the assignment for the benefit of creditors .lacked a seal, it passed the leasehold created by a sealed instrument. Sanders v. Partridge, 108 Mass. 556, 558. Adamowicz v. Iwanicki, 286 Mass. 453, 457. If the relinquishment to Louis Wernick (Saxeney v. Panis, 239 Mass. 207, 209) or the assignment by him to the defendant was a breach of the covenants of the lease, the leasehold nevertheless passed, and
Privity of estate imposes upon an assignee of a leasehold liability for rent becoming due under the lease during the time he holds and retains title to the leasehold. Donaldson v. Strong, 195 Mass. 429. Harmon, Wastcoat, Dahl Co. v. Star Brewing Co. 232 Mass. 566. Kirby v. Goldman, 270 Mass. 444. Kacavas v. Toothacker, 278 Mass. 302. Gorin v. Stroum, 288 Mass. 6, 11. 68 Beacon Street, Inc. v. Sohier, 289 Mass. 354, 359. If, the assignment not being under seal, entry into possession by the defendant was essential to his liability (see Collins v. Pratt, 181 Mass. 345; Gorin v. Stroum, 288 Mass. 6, 11), such entry into possession could have been found. If, like a trustee in bankruptcy (Abbott v. Stearns, 139 Mass. 168, 169; In re Washburn, 11 Nat. Bankr. Reg. 66; In re United Cigar Stores Co. of America, 69 Fed. [2d] 513; In re McCrory Stores Corp. 69 Fed. [2d] 517; Green v. Finnigan Realty Co. 70 Fed. [2d] 465; City Bank Farmers Trust Co. v. Irving Trust Co. 299 U. S. 433; compare as to receivers, Bell v. American Protective League, 163 Mass. 558; Oscar Heineman Corp. v. Nat Levy & Co. Inc. 6 Fed. [2d] 970), the defendant, taking an interest in the leasehold by the general language of an assignment for the benefit of creditors without specific reference to the leasehold, had an election to accept or reject it, an election to accept it could have been found. Carter v. Warne, 4 C. & P. 191. How v. Kennett, 3 Ad. & El. 659. Dorrance v. Jones, 27 Ala. 630. Smith v. Goodman, 149 Ill. 75, 81. Journeay v. Brackley, 1 Hilton (N. Y.) 447. Astor v. Lent, 6 Bosw. (N. Y.) 612. Walton v. Stafford, 14 App. Div. (N. Y.) 310, affirmed 162 N. Y. 558. Weinmann & Co.’s Estate, 164 Penn. St. 405. The prompt demand for rent, made by the plaintiffs upon the defendant on June 2, 1928, tended to require a prompt election. Smith v. Ingram, 90 Ala. 529, 532. Cameron v. Nash, 41 App. Div. (N. Y.) 532. There was evidence
It is true that at common law rent under a sealed lease could not be recovered under the common counts. Warren v. Ferdinand, 9 Allen, 357. Bowen v. Proprietors of South Building, 137 Mass. 274. Smiley v. McLauthlin, 138 Mass. 363. But by G. L. (Ter. Ed.) c. 231, § 7, Eighth, recovery upon a common count was permitted. Brilliant v. Silk, 290 Mass. 537. Although the statute provides that the “bill of particulars in such cases shall refer to the document under which the claim arises, by its proper description and date,” and this was not done, the defect was one merely of pleading, and was waived by the failure of the defendant to take the point before trial. See Preston v. Neale, 12 Gray, 222; Brocklehurst & Potter Co. v. Marsch, 225 Mass. 3, 11. The defendant had no reason to think that he was sued for rent not arising under the lease, for there could be no recovery for use and occupation where the lease was still in force and the use and occupation could be referred to the lease. Highland Trust Co. v. Slotnick, 289 Mass. 119, 123. Moskow v. Fine, 292 Mass. 233, 238-239. Walton v. Stafford, 14 App. Div. (N. Y.) 310, affirmed 162 N. Y. 558, 563. Compare Oboler v. Miller, 146 Misc. (N. Y.) 509.
Since the instalment of rent due June 1, 1928, did not become due within the period during which the defendant owned an interest in the leasehold, he is not liable for it as assignee of the lease. Walton v. Stafford, 14 App. Div. (N. Y.) 310, affirmed 162 N. Y. 558. Anderson v. Hamil
The defendant became liable as assignee for the rent, amounting to $215, which became payable in advance on July 1, 1928, within the period of his ownership of the leasehold. Kirby v. Goldman, 270 Mass. 444, 448. But upon the surrender of the leasehold on July 9, 1928, the plaintiffs could retain or recover only “a proportional part of
Exceptions overruled.