80 F.2d 88 | 2d Cir. | 1935
The appellant is the assignee of the landlord’s interest in a lease demising to the Miller Company premises in Stamford, Conn., for a term of fifteen years beginning February 22, 1930. On February 10, 1933, receivers in equity were appointed for the Miller Company on a bill filed in the court below and the defendant’s answer consenting thereto. Within the time fixed for presenting claims, the appellant filed a claim for damages for anticipatory breach of the lessee’s obligations under the lease by reason of the appointment of receivers. It claims the difference between the rent reserved for the unexpired portion of the term and the fair rental value of the premises for that time. This appeal is from an order disallowing the claim.
The lease provided for a minimum annual rent of $65,000, payable in monthly installments in advance, plus taxes, and, on certain conditions, plus an additional amount based on a percentage of the lessee’s gross sales. It also provided that if any part of the rent should remain in default for ten days, or if a receiver of any property of the lessee should be appointed, the term should immediately end at the option of the lessor, and the lessor with or without entry might recover possession. It contained no provision for liquidated or other damages in the event of nonpayment of rent or other default by the lessee. By a subsequent agreement the minimum agreed rental of $65,-000 was reduced to $29,000 for the year beginning February 1, 1933. When the receivers were appointed the .lessee was not in default under the terms of the lease. While the receivers were in possession they paid for monthly occupancy at the rate of $29,000 per year. On June 13, 1933, they reported to the court, requesting a direction to disaffirm the lease, and gave the appellant notice that they had so requested.
It is conceded by the appellant that the question whether it had a provable claim is governed by the law of Connecticut, the lease itself containing no covenant providing the measure of dam
In the case at bar rent for the month of February, 1933, had been paid prior to the appointment of the receivers. Consequently, even if it be assumed that appointment of equity receivers for the lessee is equivalent to a statement by the lessee that it will pay no rent to accrue in the future, there was no partial breach which such repudiation could turn into a total breach of the contract. Under the law of Connecticut as expounded in Miller v. Benton and Sagamore Corporation v. Willcutt, the appellant’s claim set forth no cause of action and was properly disallowed. This disposition of the case makes it unnecessary to consider any of the other matters which have been argued.
Order affirmed.