Bowen v. Haskell
| Decision Date | 12 June 1893 |
| Citation | 55 N.W. 629,53 Minn. 480 |
| Parties | Edward W. Bowen v. William E. Haskell et al |
| Court | Minnesota Supreme Court |
Argued May 11, 1893.
Appeal by plaintiff, Edward W. Bowen, from an order of the District Court of Hennepin County, Chas. M. Pond, J., made December 2 1892, denying his motion for a new trial.
On March 20, 1890, Malinda Hellen leased to M. Whipple and H. W Field lots nineteen (19) and twenty (20) in block one (1) in Stillmans' Addition to Minneapolis, for the term of ten years from that date. The lessees agreed to pay $ 75 rent per month, payable monthly in advance. The premises were used for a livery barn No. 2815 Nicollet Avenue. On August 15, 1890 Whipple and Field assigned the lease and all their rights thereunder to the defendant William E. Haskell, and he, by writing indorsed upon the assignment, assumed their place and agreed to pay the rent and perform all the conditions of the lease on their part. Mrs. Hellen, by an indorsement on this assignment, assented and agreed thereto. On October 15, 1890 Haskell sold and assigned the lease, and all his rights under it, to M. Chambers, who, by writing indorsed on the assignment, assumed to pay the rent and perform the covenants of the lease in the place and stead of Haskell. Mrs. Hellen, by a like indorsement, assented and agreed to this assignment also. Chambers paid the rent to February, 1891. On May 5, 1891, Mrs. Hellen assigned and transferred the rent and all her rights, to the plaintiff, Edward W. Bowen, and he commenced this action February 28, 1892, against Whipple, Field and Haskell to recover the rent which fell due February 1, 1891, and monthly thereafter. Whipple and Field did not answer, but Haskell answered that the lease was, as to him, surrendered by the operation of his assignment to Chambers and Mrs. Hellen's consent thereto. The issues were tried May 22, 1892. The court made and filed findings stating these facts, and directed judgment to be entered to the effect that plaintiff was not entitled to any judgment or relief in the premises. He moved for a new trial, but was refused.
Order affirmed.
J. L. Dobbin, for appellant.
Haskell made himself liable for all rents accruing subsequent to the time of the assignment to him. Upon the failure of any subsequent occupant or assignee of his to pay rent to the original lessor, or her assignee, Haskell was liable, and any evidence as to when or how he vacated the premises was irrelevant. Under our view of the case, the acceptance of rent from Chambers, or any one else, would not release Haskell from the liability which he assumed at the time of accepting the assignment from Whipple and Field and making his indorsement on the lease. Davis v. Morris, 36 N.Y. 569; Pfaff v. Golden, 126 Mass. 402; 2 Wood, L. & T. 1034.
Chas. G. Laybourn and Kellogg & Laybourn, for respondent.
The assignment by Haskell to Chambers, by consent of Hellen, released Haskell. Vandekar v. Reeves, 40 Hun 434; Bliss v. Gardner, 2 Bradw. App. 422; Randall v. Rich, 11 Mass. 494; Levering v. Langley, 8 Minn. 107, (Gil. 82;) Smith v. Niver, 2 Barb. 180; Wallace v. Kennelly, 47 N.J.L. , 242; Woodfall, L. & T. 496, 498.
An assignee of a lease may always discharge himself for subsequent breaches, both as regards the payment of rent and other covenants, by assigning over, even if it be done for the express purpose of getting rid of his responsibility. Taylor, L. & T. §§ 452, 453; Armstrong v. Wheeler, 9 Cowen, 88; Hurst v. Rodney, 1 Wash. C. C. 375; Keeling v. Morrice, 12 Mod. R. 371; Childs v. Clark, 3 Barb. Ch. 52; Valliant v. Dodemede, 2 Atk. 546; Johnson v. Sherman, 15 Cal. 287.
OPINION
We pass by several questions discussed by counsel, and came directly to the consideration of a finding of fact to the effect that after the lease had been assigned to the respondent Haskell by the original lessees the lessors consenting, through their agent and attorney in fact, B. H. Hellen, said respondent sold and transferred all of his title and interest in the lease and in the leased premises to one Chambers, who then entered into possession; that said sale and transfer were duly and properly consented to by the lessors, again acting through...
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