Amory v. Kannoffsky

• Decision Date: 31 March 1875
• Citation: 117 Mass. 351
• Parties: Robert Amory v. William Kannoffsky
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 351

Robert Amory v. William Kannoffsky

Supreme Court of Massachusetts

March 31, 1875

Argued November 17, 1874

Suffolk. Contract to recover rent reserved in a lease under seal from the plaintiff to the defendant and signed by John L. Roberts and the defendant. Trial in the Superior Court before Bacon, J., who allowed a bill of exceptions in substance as follows:

The plaintiff proved the lease whereby it appeared that the rent was payable monthly in advance, on the sixth day of every month, and this action was brought to recover the installments due on October 6 and November 6, 1872, the lease having at the latter date two years more to run. John L. Roberts, who signed the lease, was at the time the general agent of the plaintiff in the management of his buildings, but had no written authority to execute the lease.

The defence relied on was a surrender of the lease and an acceptance of the same by Roberts. The defendant offered in evidence the record of an action under the Gen. Sts. c. 137, brought by the plaintiff against Michael G. Minon, to recover possession of the premises described in the lease. The writ in that action was dated November 9, 1872. The judge ruled, against the plaintiff's objection, that the bringing of that action was a bar to the recovery from this defendant of rent for the month from November 6 to December 6, it appearing that that action was not for forcible entry or detainer by Minon.

The defendant further offered evidence tending to show that in May, 1872, he had sublet the premises to Minon; that Minon for that month and for every month after paid rent directly to Roberts, and no demand for it was made on the defendant, and that for May, when both Minon and the defendant paid rent, Roberts repaid to the defendant the amount paid by him; that the defendant told Roberts that if he received rent from Minon, he must release him from liability under his lease; that Roberts thereupon told the defendant that he should continue to receive rent from Minon, and that he might give up his lease; and that afterwards the defendant took his lease to Roberts's office and delivered it to Francis R. Roberts, who gave him a receipt therefor. Francis R. Roberts was the brother of John L. Roberts, but there was no evidence that he had any authority to act for him or for the plaintiff in the matter of giving or annulling leases. John L. Roberts knew that the lease had been left at his office, and he never returned it to the defendant. There was no evidence of any authority in John L. Roberts to accept a surrender of a lease on behalf of the plaintiff other than the general verbal authority already mentioned.

The plaintiff requested the judge to rule that Roberts could not, without written authority, accept a surrender, and that the above facts, if proved, did not constitute a surrender by operation of law; but the judge refused so to rule, and instructed the jury, that if they found the facts which were testified to by the defendant's witnesses, as above stated, to be true, those facts would constitute a surrender, and that their verdict must be for the defendant. The jury found for the defendant, and the plaintiff alleged exceptions.

Exceptions overruled.

J. C. Gray Jr. & R. Gray for the plaintiff.

G. M. Hobbs, for the defendant.

Endicott, J. Wells & Devens, JJ., absent.

OPINION

Endicott, J.

It appears by the bill of exceptions that John L. Roberts was the general agent of the plaintiff in the management of his real estate. Under this agency he executed the lease in question and received the rent, though he had no written authority. That he was authorized to do this under his general agency must be taken for granted, from the fact that this action is brought upon the covenants of the lease for such installments of rent as are not paid. In the absence of some restriction upon the admitted general agency of Roberts to manage the real estate, as he was doing by executing leases and receiving rent, his substitution of a new tenant, and his agreement with the defendant that the lease should be surrendered, must be presumed to have been within his general agency. These are the incidents of a general agency, and necessary for its complete execution. Nor was the actual surrender of the lease less binding because there is no direct evidence that Francis R. Roberts had authority to receive the lease from the defendant and give his receipt for the same. John L. Roberts knew it had been left at his office, did not return it, and continued to receive the rent from Minon in pursuance of the agreement for surrender made with the defendant. The question of the surrender of the lease is therefore to be considered as if made with the plaintiff himself.

The facts relied upon by the defendant to establish a surrender are as follows: In May 1872 he underlet the premises to Minon, and for that month both he and Minon paid rent to Roberts. The defendant then told Roberts that if he received rent from Minon he must release him from liability under the lease. Roberts said he should continue to take the rent from Minon, and that the defendant could give up his lease, and thereupon refunded the rent for May paid by the defendant. The defendant then took the lease to Roberts's office and received the receipt as above stated. The rent was paid to Roberts by Minon until October following, and in November the plaintiff brought an action under the Gen. Sts. c. 137, against Minon, to recover possession. No further demand was made upon the defendant for rent until this action was brought. The presiding judge instructed the jury that if they found these facts to be true, there was a surrender of the lease and the defendant was entitled to a verdict. We are of opinion that the ruling was correct, and that the defendant's estate in the premises was surrendered by operation of law within the meaning of the statute. Gen. Sts. c....