2 Daly 535 | New York Court of Common Pleas | 1869
In Mason v. Corder (7 Taunt. 9), the lease contained a covenant not to assign without the lessor’s consent
In Lloyd v. Crispe (5 Taunt. 250), there was a covenant in, the original lease that the lessee should not assign without the license of the lessor. The plaintiff, with the, knowledge of the existence of this covenant, made an agreement with the lessee for the assignment of the lease, and paid upon it the sum of £50. The lessor refused to give his consent, and the plaintiff brought an action against the lessee to recover back the £50. The defendant insisted that he had not contracted to obtain the lessor’s consent to the assignment; that it was incumbent upon the plaintiff, who had full notice of this covenant in the lease, to procure the'consent; that as the defendant was willing to assign his lease if the plaintiff would accept it, and to receive the residue of the purchase-money, he had done all that he had contracted to perform, and that the plaintiff could not recover back the deposit. Sir James Mansfield, upon the trial, was of the opinion that the plaintiff, as he had had all the covenants in the lease read over to him, and was perfectly cognizant of the restriction against alienation, he had taken upon himself to obtain the landlord’s consent, and the lessee had only agreed to part with his interest in the term, as far as he was able to do so. He accordingly directed a nonsuit. But, upon a motion for a new trial, all the other judges thought otherwise. They were of the opinion that the plaintiff, not being able to enjoy the premises, had paid the £50 for nothing. That it was the lessee’s business to obtain the landlord’s consent and not the plaintiff’s, and that he might recover his £50 back. A new trial was therefore ordered. In accordance with these decisions, it is laid down as the general rule, in Mr. Platt’s very accurate treatise upon the Law of Covenants (p. 442), that the vendor of a lease containing such a covenant, and not the vendee, is bound to obtain the landlord’s consent to the assignment.
It is suggested in the plaintiff’s points, that' there is a distinction between cases where the term is put an end to, and the lease becomes absolutely void by the breach of a condition or limitation contained in it, and cases where it is merely voidable ; as where the covenant is that the landlord may re-enter, if the condition is broken, which is true (3 Co. 64. 1 Inst. 214, b); and it is, therefore, argued, that if, by the terms of the lease, an assignment without the landlord’s consent would render it thereafter absolutely void, it is necessarily implied that the lessee will obtain the landlord’s consent before making the assignment, for the reason that an assignment without it would wholly destroy the subject-matter, and nothing would pass to the assignee under it; but that, where the condition is that if the lease is assigned, it shall be at the landlord’s option to put an end to the term, or to re-enter, the assignment may be good, for the landlord may never exercise his option, or he may waive the condition by accepting rent from the assignee. That, in accordance with this view, the two cases referred to are to be distinguished as cases where the lease became absolutely void by an assignment without the landlord’s license or consent; but that, in the present case, it would be merely voidable at the landlord’s option, which makes an essential difference, as in the one case there would be at least the possibility of something to assign, and in the other there would not be. But the decision in these cases was not founded upon any such distinction, nor is there anything in the report of the cases from which it could be inferred that the leases there would have become absolutely void, by a breach of the condition against assignment. On the contrary, in cases where the language of the condition was equally strong—even stronger— as where it contained an express provision that, upon the breach, the lease should be utterly void, and there was nothing expressed in respect to re-entry, or any other qualification, it has been held that a breach of the condition would not tender
This will become even more apparent upon considering other provisions of the law in respect to enforcing forfeitures for the breach of covenants against assigning or underletting without the landlord’s permission. “ Covenants of this description,” says Platt in his Treatise on Covenants (p. 406), “ have always been construed by courts of law with the utmost jealousy, to prevent the restraint from going beyond the express stipulation.” Thus, to enable the landlord to enforce a forfeiture for underletting or assigning without his consent, there must be a provision for a re-entry, or that the estate shall be void upon the breach of the condition ; for, in the absence of a proviso for a re-entry, or what is equivalent to it, he would possess no such power. It would not be a good condition, but a mere covenant or agreement, for the breach of which his only remedy would be an action for damages ( Wilson v. Phillips, 2 Bing. 13; 4 Cruise’s Digest, p. 353, §§ 1, 3 ; Co. Lit. § 331;
, Now, in one of these two cases (Lloyd v. Crispe) there was a proviso for a re-entry, which shows that in that case the lease was voidable only at the option of the landlord; so that no such distinction as that which is relied upon by the plaintiff’s counsel here could have affected the decision in that case. Li the other (Mason v. Corder) it does not appear whether there was or was not a proviso for a re-entry, or that the lease should be void upon the breach of the covenant not to assign; nor is it material, for the case was decided expressly upon the authority of the previous case of Lloyd v. Crispe. The fact is, that both cases were decided upon this plain ground, that when a lessee agrees to assign his lease, an act, which, if done without his landlord’s consent, would place it at once in the landlord’s power to put an end to the lease, it is to be assumed that he either has, or can obtain, or engages to procure, his landlord’s consent, which is necessary to enable him to vest in the assignee the same estate which he has himself, and which is what he engages by an assignment to transfer. By assigning the house, without the landlord’s consent, he transfers the estate, charged with a breach of one of the conditions upon which it was to be enjoyed, which is very different from what he possessed himself, as it may then be divested, and the assignee deprived of all right and interest in it, at the landlord’s pleasure. It is obvious, therefore, that to render the transfer effectual, whether the assignee knows of the covenant against assignment or not, that an assignment, duly executed, should be given, with the landlord’s consent endorsed upon it, or otherwise expressed in writing for the assignee’s security, and to vest in him what remains of the term.
The provision in the lease, as I recollect it, for I have not the instrument now before me, is that the term should expire at the option of the landlord, upon the premises being let, demised, underlet, assigned, or sold without his written consent. This is equivalent to a proviso for a re-entry, whether the words re-entry are or are not in the lease (Bacon’s Abr., tion A, G, H; Shephard’s Touchstone, 122). I unders
If the defendants should accept the assignment without the written consent of the landlord, and pay the amount agreed upon, they would hold simply at the landlord’s pleasure. It is in evidence that the landlord, an heir who has succeeded to the estate since that lease was granted, has declared to one of the defendants that he would not give his consent, saying that the plaintiff had no right to assign, and that if they, the defendants, took possession, he would put them out. This, in the event of an assignment, he could undoubtedly do, and if this court should compel the defendants to accept the assignment, and the landlord should put his threat into execution, the defendants would be wholly without remedy. The landlord could re-enter for condition broken, and a court of equity could not relieve the defendants against a forfeiture thus incurred ( Wafer v. Mocato, 9 Mod. 112; Eq. Ca. Ab. 58; Hill v. Barclay, 18 Ves. jr. 63; Gregory v. Wilson, 9 Hare, 683; Baxter v. Lansing, 7 Paige, 352; Davis y. West, 12 Ves. jr. 475; Rolfe v. Harris, reported in Braceridge v. Buckley, 2 Price R. 200; Skinner v. Dayton, 2 Johns. C. R. 535; Platt on Covenants, 423, 429; Story’s Equity Jur. § 1324). A court of equity will relieve against forfeiture incurred by accident or mistake, or where full compensation can be made, as for non-payment of rent, or where there is some rule by which to measure the damages, or where an assignment is made by executors after death of lessee, without the lessor’s consent, for there it is an alienation by the act of Grod (Seers v. Hmd, 1 Ves. jr. 295), but not where the assignment is voluntarily made by the lessee without the lessor’s consent. This was held in Wafer v. Mocato (supra), by Lord Macclesfield more than a century ago, and has been uniformly adhered to since. The reason is that the court cannot estimate the damage. There is no rule to go by, for it cannot say whether the lessor will gain or lose by the assignment. It is sufficient that he insists upon his covenant, and no one has a right to put him in a different situation. The law ascertains the contract, defines the rights of the contracting parties, and a corn't of equity will not interfere (Platt on Covenants, 429, 430).
This may be a hard case for the plaintiff', who appears to have acted throughout in good faith, and has sold out his stock of goods at great loss and sacrifice, and closed up his business, that he might be enabled to deliver up to the defendants the possession of the store at the time agreed upon. He did nothing to mislead the defendants, or to draw them into the contract by any act or countenance. He submitted his lease for their examination, and requested them to read it over. They had it in their possession for more than an hour, and when they intimated their readiness to enter into the agreement, he suggested that they were rather quick; that they had better take time, and that he would give them the refusal. On their part, they testified that they read the lease only in part; that they read it only to the extent of seeing what restrictions were in it, and did not see the provision against alienation, which was in the printed part of the instrument. The agreement signed was that they would take the lease subject to the restrictions contained in it. There were many restrictions, chiefly declaratory of purposes for which the premises should not be used, and it was to these restrictions that the defendants gave their attention. They were not aware of this condition requiring the landlord’s consent to the assignment, and if they had been, it would have made no difference, for they would then have had the right to assume that the plaintiff had, or could obtain, the landlord’s consent.- The plaintiff admits that he knew there was such a provision. He consequently knew that he had no absolute right to .assign it without the landlord’s consent, or if he did, .that a forfeiture of the term would be incurred. This was a very grave matter. Did he expect that the defendants were to obtain the landlord’s consent, or that they were to take the lease subject to the risk of being
It is urged, in conclusion, that the acts of the defendants, after they knew of the existence of this covenant against alienation, amounted to a waiver of that objection within the meaning of a rule which has frequently been enforced in courts of equity. In certain cases, courts of equity have held that a party shall not discharge himself from the performance of a contract by falling back upon an objection when his acts, after
In the present case, the defendants testify that they knew nothing of this covenant against alienation, and of the necessity of obtaining the landlord’s consent, until the lawyer informed them of it. When applied to to complete the contract, they objected, and said they wanted to see the lawyer, and suggested that the plaintiff and his counsel should see their lawyer. They accordingly did see the defendants’ lawyer, who said he wanted time to investigate, and they gave him a few days, the plaintiff’s counsel taking the ground that there was no clause in the lease which prevented the plaintiff from disposing of it. It appears that the defendants went to the owner to get an extension of the lease which he refused to give. They said that they had purchased the lease of the plaintiff, and asked if he had the right to assign it, and the owner said no, and that if they took possession, he would put them out. They told the plaintiff that
This embraces a review of all the points reserved, and upon the grounds stated judgment must be given for the defendants.