228 Mass. 390 | Mass. | 1917
The defendant as lessee covenanted to pay the rent reserved during the term, and this obligation generally would continue after as well as before he assigned to the Kenney-Kennedy Company, as he remained liable by privity of contract even if the assignee also became liable through privity of estate. Way v. Reed, 6 Allen, 364, 368, 369. Carpenter v. Pocasset Manuf. Co. 180 Mass. 130, 133, 134. It is contended however by him, that his liability has been terminated by either a surrender of the lease or by an eviction by the lessors to which he assented.
“The rule of law,' as now settled by the recently adjudicated cases, is, that any acts which are equivalent to an agreement on the part of a tenant to abandon and on the part of the landlord to resume possession of demised premises amount to a surrender of a term by operation of law.” Talbot v. Whipple, 14 Allen, 177, 180. And the defendant has the burden of proof. Leavitt v. Maykel, 210 Mass. 55. It appears in the findings of fact by the trial judge, that while the defendant and his assignee ceased to occupy the store in the month of Augúst, 1913, “and from that time to the end of the period of the lease were willing to be relieved from liability thereunder,” yet they “ sublet the store from time to time and paid rent to the plaintiffs until and including the month of February, 1915.” During this month the agreement in writing on which the defendant relies as releasing him was executed by one Butler, the duly authorized representative of the estate of the lessors, and the City Trust Company, acting by one Minton, whereby the company was to lease the store for a term of seven years from the first day of March, 1915, leaving the original leasehold a year to run before expiration by limitation. Butler and
The evidence as to all the transactions was admissible also on the issue, as to whether the defendant had been evicted. It is settled that where as in the case at bar the lessee relies on the defence that other tenants have been accepted from whom rent has been collected, the lessor may show, that his acts when explained raise no presumption of an intention to evict, and that in fact the tenant never has been ousted. Taylor v. Finnigan, 189 Mass. 568, 573, and cases cited. Cooley v. Collins, 186 Mass. 507, 510. Skally v. Shute, 132 Mass. 367. The evidence of sending the key of the store to the plaintiffs on January 1, 1916, after the subtenant ceased to occupy, and its return by the plaintiffs to Kenney by whom the key subsequently was tendered to the plaintiff Taylor, who refused to receive it, while clearly admissible, was not conclusive proof of acts absolving the defendant, but incidents only to be considered in connection with the conduct of the parties'.
But the statement, made by Kenney to the sublessee in the absence of the plaintiffs or their agent, that “he had not anything to do with the store,” was a self-serving declaration which was excluded properly.
Nor could the third request have been given. A short answer is, that the defendant had not declared in set-off as required by E. L. c. 174, § 8. If however the averment in the answer, "... the defendant says that by reason of the representations and acts of the plaintiffs the defendant is damaged to an amount in excess of the sum which the plaintiffs now claim is due for rent” is treated as pleading recoupment, there is no evidence to support the claim. The defendant, while he repudiates his express covenant, cannot at the same time rely on it as ground for damages against the lessor. And having been allowed the full benefit of all payments received by the plaintiffs under the arrangement with Minton, he fails to show any ground of complaint. Deane v. Caldwell, 127 Mass. 242.
The result ordinarily would be that the defendant should be held liable for the remainder of the rent as it accrued. But he also excepted to the giving of the first four requests of the plaintiffs, which in substance were, that although the plaintiffs before the rent accrued for the recovery of which the action is brought sold and conveyed the premises by deed absolute in form, yet they could recover, because under a contemporaneous paroi agreement to which the defendant was a stranger, it was agreed between the lessor and the grantee, that the plaintiffs should collect the rent for the remainder of the term and pay it to the grantee. The rulings cannot be supported. The lease was prior to the deed, and the grantee by force of the conveyance which contained no reservation of the rent by the lessor became entitled as part of the realty to receive all rent thereafter accruing. Burden v. Thayer, 3 Met. 76, 78. It was early decided in this Commonwealth that to constitute privity of estate between the grantee of the lessor and the lessee no attornment was necessary. Farley v. Thompson, 15 Mass. 18, 25, 26. Marsters v. Cling, 163 Mass. 477. The grant also operated as an assignment of the lease as well as
But, even if the exceptions are well taken, the plaintiffs ask leave to amend under St. 1913, c. 716, § 3, by substituting the grantee as the party plaintiff. The rent declared for on the account annexed now permitted by St. 1915, c. 146, included by stipulation of parties rent for the month of February, 1916, all of which accrued after the conveyance. While the plaintiffs under the paroi agreement have paid to the grantee the full amount of rent from the time of his purchase until the lease terminated, their rights to subrogation do not depend on these payments, which in so far as the debt is concerned were purely voluntary, but on the enforceable claims, if any, which the grantee has against the defendant. The grantee having leased the store by indenture on October 1, 1915, for sixteen years from that date, subject to the lease in question, which he assigned to the lessees who apparently at once entered into possession and have since occupied, the question whether the grantee can maintain an action has never been determined. We are accordingly of opinion that the plaintiffs must be left to take such further proceedings in the trial court as they may be advised.
Exceptions sustained.